EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of September 24,
1996 (this "Agreement"), between NWCG (Parent) Holdings
Corporation, a Delaware corporation (the "Seller"), The News
Corporation Limited, (ACN 007 910 330) a South Australia
corporation ("News Corp."), and Fox Television Stations,
Inc., a Delaware corporation in which News Corp. has an
indirect interest (the "Purchaser").
WHEREAS, the Seller owns all of the outstanding
shares of capital stock of NWCG Holdings Corporation, a
Delaware corporation ("Holdings"), and 2,682,236 shares of
Class B Common Stock, par value $.01 per share (the "Class B
Common Stock"), of New World Communications Group
Incorporated, a Delaware corporation (the "Company").
WHEREAS, Holdings owns 34,510,000 shares of Class B
Common Stock.
WHEREAS, the Company, News Corp., the Purchaser and
Fox Acquisition Co., Inc., a Delaware corporation and a
wholly owned subsidiary of the Purchaser ("Merger Sub"), are
parties to the Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), pursuant to which
Merger Sub will be merged with and into the Company (the
"Merger").
WHEREAS, as a condition to the willingness of News
Corp., the Purchaser and Merger Sub to enter into the Merger
Agreement, and as an inducement for each of them to do so,
the Seller has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements
contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
Section 1.1 Purchase and Sale. Upon the terms and
subject to the conditions set forth herein, the Seller agrees
to sell, assign, transfer, convey and deliver to the
Purchaser, and the Purchaser agrees to purchase and accept
from the Seller, on the Closing Date (as defined below), all
of the Seller's rights, title and interest in and to all of
the outstanding shares of capital stock of Holdings (the
"Holdings Shares") and all of the shares of Class B Common
Stock owned by the Seller at the Effective Time (the "Company
Shares," and, together with the Holdings Shares, the
"Transferred Shares"), free and clear of all liens,
encumbrances and charges other than permitted Liens (as
defined below) (the "Acquisition").
Section 1.2 Purchase Price. In consideration for
the Acquisition, the Purchaser shall, in accordance with
Section 5.12, pay for, and procure the delivery to, and in
the name of, the Seller on the Closing Date of, that number
of American Depositary Shares of News Corp. (the "News Corp.
Preferred ADRs"), each of which represents four fully paid
and nonassessable Preferred Limited Voting Ordinary Shares,
par value A$.50 per share, of News Corp. (the "News Corp.
Preferred Stock"), equal to (a) the product of (i) the number
of shares of Class B Common Stock of the Company directly or
indirectly owned by the Seller or Holdings immediately prior
to the consummation of the Acquisition and (ii) 1.45 less (b)
the number determined by dividing (i) the accreted value as
of the Closing Date of the Senior Notes due 1999 of Holdings
(the "Holdings Notes") minus $10 million by (ii) $18.625.
ARTICLE II
THE CLOSING
Section 2.1 Closing Date. Subject to the
satisfaction or waiver of all of the conditions to closing
contained in Article VI, the consummation of the Acquisition
(the "Closing") shall take place immediately prior to, and at
the same place as, the closing of the Merger (the date of the
Closing being herein referred to as the "Closing Date").
Section 2.2 Transactions To Be Effected at the
Closing. At the Closing:
(a) the Seller shall deliver to the Purchaser
certificates representing the Transferred Shares, duly
endorsed in blank, or accompanied by stock powers duly
executed in blank, by the Seller; and
(b) the Purchaser shall procure the delivery
to the Seller of certificates registered in the Seller's name
for the number of News Corp. Preferred ADRs representing the
Purchase Price as determined pursuant to Section 1.2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
The Seller represents and warrants to News Corp.
and the Purchaser as follows:
Section 3.1 Organization and Qualifications. Each
of the Seller and Holdings is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware and has the requisite power and
authority and all governmental permits, approvals and other
authorizations necessary to own, lease and operate its
properties and to carry on its business as it is now being
conducted, except where the failure to be so organized,
existing or in good standing or to have such power, authority
and governmental permits, approvals and other authorizations
would not, individually or in the aggregate, have a material
adverse effect on the business, assets, financial or other
condition, or results of operations of the Seller and
Holdings, taken as a whole (a "Seller Material Adverse
Effect").
Section 3.2 Capitalization. The authorized
capital stock of Holdings consists of 1,000 shares of common
stock, par value $.01 per share (the "Holdings Common
Stock"), and 1,000 shares of preferred stock, par value $.01
per share ("Holdings Preferred Stock"), of which 100 shares
of Holdings Common Stock are issued and outstanding and no
shares of Holdings Preferred Stock are issued and
outstanding. There are no options or agreements to which the
Seller, Holdings, Xxxxxx X. Xxxxxxxx or any entity, other
than the Company and its Subsidiaries (as defined below),
controlled, directly or indirectly, by Xxxxxx X. Xxxxxxxx
(the "Xxxxxxxx Affiliates") are a party obligating the
Seller, Holdings, Xxxxxx X. Xxxxxxxx or any Xxxxxxxx
Affiliate to issue, transfer, grant or sell any shares of
capital stock of, or other equity interests in, or securities
convertible into or exchangeable for any capital stock or
other equity interests in, Holdings or the Company.
Section 3.3 Title to Stock. Except as set forth
in Section 3.3 of the letter from the Seller, dated as of the
date hereof, addressed to News Corp. and the Purchaser (the
"Seller Disclosure Letter"), the Seller owns as of the date
hereof all of the outstanding shares of Holdings Common Stock
and 2,682,236 shares of Class B Common Stock free and clear
of any security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting
rights, charges and other encumbrances of any nature
whatsoever (collectively, "Liens"). At the Closing, the
Purchaser will acquire good and marketable title to the
Transferred Shares free and clear of any Liens, other than
the Lien on the Holdings Shares securing the Holdings Notes.
Except as set forth in Section 3.3 of the Seller Disclosure
Letter, Holdings owns as of the date hereof 34,510,000 shares
of Class B Common Stock, which shares are free and clear of
any Liens. Except as set forth in this Section 3.3 and
except for warrants to purchase 1,500,000 shares of Class B
Common Stock, neither the Seller, Holdings, Xxxxxx X.
Xxxxxxxx nor any Xxxxxxxx Affiliate owns any shares of
capital stock of the Company.
Section 3.4 Authority Relative to This Agreement.
The Seller has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby (the "Transactions"). The execution and
delivery of this Agreement by the Seller and the consummation
by the Seller of the Transactions have been duly and validly
authorized by all necessary corporate action and no other
corporate proceedings on the part of the Seller are necessary
to authorize this Agreement or to consummate the
Transactions. This Agreement has been duly and validly
executed and delivered by the Seller and, assuming the due
authorization, execution and delivery thereof by News Corp.
and the Purchaser, constitutes the legal, valid and binding
obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and by
equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief are
subject and except that rights to indemnity hereunder may be
subject to Federal or state securities laws or the policies
underlying such laws.
Section 3.5 No Conflict; Required Filings and
Consents. (a) Except as set forth in Section 3.5 of the
Seller Disclosure Letter, the execution and delivery of this
Agreement by the Seller do not, and the performance of its
obligations under this Agreement and the consummation of the
Transactions by the Seller will not, (i) conflict with or
violate the certificate of incorporation or bylaws or
equivalent organizational documents of the Seller or
Holdings, (ii) subject to the making of the filings and
obtaining the approvals identified in Section 3.5(b),
conflict with or violate any law, rule, regulation, order,
judgment or decree (collectively, "Laws") applicable to the
Seller or Holdings or by which any property or asset of the
Seller or Holdings is bound or affected, or (iii) subject to
the making of the filings and obtaining the approvals
identified in Section 3.5(b), conflict with or result in any
breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default)
under, result in the loss (by the Seller or Holdings) or
modification in a manner materially adverse to the Seller and
Holdings of any material right or benefit under, or give to
others any right of termination, amendment, acceleration,
repurchase or repayment, increased payments or cancellation
of, or result in the creation of any Liens on any property or
asset of the Seller or Holdings pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license,
permit, franchise, or other instrument or obligation
(collectively, "Contracts"), to which the Seller or Holdings
is a party or by which the Seller or Holdings or any property
or asset of the Seller or Holdings is bound or affected,
except, in the case of clauses (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay in any material
respect consummation of the Transactions, or otherwise,
individually or in the aggregate, prevent the Seller from
performing its obligations under this Agreement in any
material respect, and would not, individually or in the
aggregate, have a Seller Material Adverse Effect.
(b) The execution and delivery of this
Agreement by the Seller do not, and the performance of its
obligations under this Agreement and the consummation of the
Transactions by the Seller will not, require any consent,
approval, authorization or permit of, or filing with or
notification to, any federal, state or local governmental or
regulatory agency, authority, commission or instrumentality,
whether domestic or foreign (each a "Governmental Entity"),
except (i) for (A) applicable requirements, if any, of the
Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and state securities or "blue sky" laws
("Blue Sky Laws"), (B) the pre-merger notification
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act") and (C) approval of the
Transactions by the Federal Communications Commission (the
"FCC") under the Communications Act of 1934, as amended (the
"Communications Act"), and the rules and regulations of the
FCC promulgated thereunder (the "FCC Rules") and (ii) where
the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate,
prevent or delay in any material respect consummation of the
Transactions, or otherwise prevent the Seller from performing
its obligations under this Agreement in any material respect,
and would not, individually or in the aggregate, have a
Seller Material Adverse Effect.
Section 3.6 SEC Reports and Financial Statements.
Each form, report, schedule, registration statement and
definitive proxy statement filed by Holdings with the
Securities and Exchange Commission (the "SEC") since December
31, 1994 and prior to the date hereof (as such documents have
been amended prior to the date hereof, collectively, the
"Holdings SEC Reports"), as of their respective dates,
complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act and
the rules and regulations thereunder. None of the Holdings
SEC Reports, as of their respective dates, contains any
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except for such statements, if any, as have been modified or
superseded by subsequent filings prior to the date hereof.
The financial statements of Holdings included in such reports
comply as to form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the SEC with respect thereto, have been
prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated
in the notes thereto or, in the case of the unaudited interim
financial statements, as permitted by Form 10-Q of the SEC)
and fairly present (subject, in the case of the unaudited
interim financial statements, to normal, year-end audit
adjustments) the financial position of Holdings as at the
dates thereof and the results of its operations and cash
flows for the periods then ended. Since June 30, 1996,
Holdings has not incurred any liabilities or obligations
(whether absolute, accrued, fixed, contingent, liquidated,
unliquidated or otherwise and whether due or to become due)
of any nature, except liabilities, obligations or
contingencies (a) which are reflected on the unaudited
balance sheet of Holdings as at June 30, 1996 (including the
notes thereto), or (b) which (i) were incurred in the
ordinary course of business after June 30, 1996 and
consistent with past practices, (ii) are disclosed in the
Holdings SEC Reports filed after June 30, 1996 or (iii) would
not, individually or in the aggregate, have a Seller Material
Adverse Effect. Since June 30, 1996, there has been no
change in any of the significant accounting (including tax
accounting) policies, practices or procedures of Holdings.
Holdings has no direct subsidiaries other than the Company.
Section 3.7 Absence of Certain Changes or Events.
Except for the Holdings Notes, Holdings does not have any
material liabilities or obligations. Holdings has no
agreement, arrangement or understanding with King World
Productions, Inc. ("King World") pursuant to which Holdings
is obligated to make any payment to King World as a result of
recent discussions regarding a possible transaction between
the Company and King World. Holdings has conducted no
operations other than in connection with the Holdings Shares
and the Holdings Notes.
Section 3.8 Taxes. Except as set forth in Section
3.8 of the Seller Disclosure Letter:
(a) Holdings has timely filed (or has had
timely filed on its behalf) or will timely file or cause to
be timely filed, all material Tax Returns required by
applicable Law to be filed by it prior to or as of the
Effective Time. All such Tax Returns and amendments thereto
are, or will be before the Effective Time, true, complete and
correct in all material respects.
(b) Holdings has paid (or has had paid on its
behalf), or where payment is not yet due, has established (or
have had established on its behalf and for its sole benefit
and recourse), or will establish or cause to be established
on or before the Effective Time, an adequate reserve for the
payment of, all material Taxes due with respect to any period
ending prior to or as of the Effective Time.
(c) No deficiency or adjustment for any
material Taxes has been proposed, asserted or assessed
against Holdings, that has not been resolved or paid or for
which an adequate reserve has not been established in
accordance with generally accepted accounting principles.
There are no Liens for material Taxes upon the assets of
Holdings, except Liens for current Taxes not yet due.
(d) Holdings has not filed a consent under
section 341(f) of the Internal Revenue Code of 1986, as
amended (the "Code").
(e) Holdings has not waived any statute of
limitations with respect to Taxes or agreed to any extension
of time with respect to a Tax assessment, Tax deficiency or
Tax Return. There are no Tax Returns of Holdings which are
currently the subject of an audit.
(f) All Tax allocations or Tax sharing
agreements to which Holdings is a party shall be cancelled
immediately prior to the Closing Date.
(g) Since July 17, 1996 neither the Company
nor any of its Subsidiaries (as defined in the Merger
Agreement) has taken any action, nor will take any action,
that would cause the acquisition of the Company pursuant to
the Merger Agreement and this Agreement to fail to qualify
for the exceptions described in former Treas. Regs.
SECTION 1.1502-13(f)(2)(i), Treas. Regs. SECTION 1.1502-13(j)(5),
former Treas. Regs. SECTION 1.1502-19(g)(1) and Treas. Regs.
SECTION 1.1502-19(c)(3), other than the Transactions (as defined
in the Merger Agreement).
(h) For purposes of this Agreement, the
following terms shall have the following meanings:
(i) "Taxes" shall mean all Federal,
state, local and foreign taxes, and other
assessments of a similar nature (whether imposed
directly or through withholding), including (A) any
interest, additions to tax, or penalties applicable
thereto or with respect to Tax Returns and (B) any
liabilities under Treasury Regulations section
1.1502-6.
(ii) "Tax Returns" shall mean all
Federal, state, local and foreign tax returns,
declarations, statements, reports, schedules, forms
and information returns and any amended tax return
relating to Taxes.
Section 3.9 Litigation. Except as set forth in
Section 3.9 of the Seller Disclosure Letter or as disclosed
in the Holdings SEC Reports filed since December 31, 1995,
there are no claims, suits, actions or proceedings pending
or, to the Seller's knowledge, threatened or contemplated,
nor are there any investigations or reviews by any
Governmental Entity pending or, to the Seller's knowledge,
threatened or contemplated, against, relating to or affecting
the Seller or Holdings, which could reasonably be expected to
have, individually or in the aggregate, a Seller Material
Adverse Effect, or to prohibit or materially restrict the
consummation of the Transactions, nor is there any judgment,
decree, order, injunction, writ or rule of any court,
governmental department, commission, agency, instrumentality
or authority or any arbitrator outstanding against the Seller
or Holdings having, or which, insofar as can be reasonably
foreseen, in the future is likely to have, any such Seller
Material Adverse Effect. In addition, there have not been
any developments with respect to any of the claims, suits,
actions, proceedings, investigations or reviews disclosed in
the Holdings SEC Reports which, insofar as can be reasonably
foreseen, in the future are likely to have a Seller Material
Adverse Effect.
Section 3.10 Registration Statement. The
information supplied or to be supplied by Holdings and its
Representatives (as defined in Section 5.4) for inclusion in
the Registration Statement (as defined in Section 5.8) will
not, either at the time the Registration Statement is filed
with the SEC, at the time any amendment thereof or supplement
thereto is filed with the SEC, or at the time it becomes
effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
Section 3.11 Broker's Fees. No investment banker,
broker or finder is entitled to a commission or fee from the
Seller or Holdings in respect of this Agreement based upon
any arrangement or agreement made by or on behalf of the
Seller or Holdings, except as otherwise provided in the
Merger Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF NEWS CORP.
News Corp. hereby represents and warrants to the
Seller as follows:
Section 4.1 Organization and Qualifications;
Subsidiaries.
(a) Each of News Corp. and each Material News
Corp. Subsidiary (as defined below) is a corporation,
partnership or other legal entity duly incorporated or
organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite power and
authority and all necessary governmental permits, approvals
and other authorizations necessary to own, lease and operate
its properties and to carry on its business as it is now
being conducted, except where the failure to be so organized,
existing or, if applicable, in good standing or to have such
power, authority and governmental permits, approvals and
other authorizations would not, individually or in the
aggregate, have a material adverse effect on the business,
assets, financial or other condition, or results of
operations of News Corp. and the Subsidiaries (as defined
below) of News Corp., and Twentieth Holdings Corporation and
its Subsidiaries, including, without limitation, the
Purchaser (each, a "News Corp. Subsidiary"), taken as a whole
(a "News Corp. Material Adverse Effect").
(b) The Purchaser and each News Corp.
Subsidiary that (i) constitutes a Significant Subsidiary of
News Corp. within the meaning of Rule 1-02 of Regulation S-X
of the SEC, (ii) owns the material assets of or is the
licensee of a United States broadcast television station, or
(iii) is otherwise material to the business or operations of
News Corp. and the News Corp. Subsidiaries, taken as a
whole, is referred to herein as a "Material News Corp.
Subsidiary." For purposes of this Agreement, a "Subsidiary"
of any person means (A) a corporation in which such person, a
subsidiary of such person, or such person and one or more
subsidiaries of such person, directly or indirectly, at the
date of determination, has either (i) a majority ownership
interest or (ii) the power, under ordinary circumstances, to
elect, or to direct the election of, a majority of the board
of directors of such corporation or (B) a partnership in
which such person, a subsidiary of such person, or such
person and one or more subsidiaries of such person (i) is, at
the date of determination, a general partner of such
partnership, or (ii) has a majority ownership interest in
such partnership or the right to elect, or to direct the
election of, a majority of the governing body of such
partnership, or (C) any other person (other than a
corporation or a partnership) in which such person, a
subsidiary of such person, or such person and one or more
subsidiaries of such person has either (i) at least a
majority ownership interest or (ii) the power to elect, or to
direct the election of, a majority of the directors or other
governing body of such person.
Section 4.2 Capitalization. The authorized
capital stock of News Corp. consists of 5,000,000,000 shares
of A$.50 each, of which, as of June 30, 1996, 1,940,029,769
were designated as Ordinary Shares, par value A$.50 each (the
"News Corp. Ordinary Shares"), and were issued and
outstanding, 977,363,617 were designated as News Corp.
Preferred Stock and were issued and outstanding, and
25,000,000 were designated as 6.25% Convertible Preference
Shares, par value A$.50 each (the "News Corp. Convertible
Stock"), and were issued and outstanding. All of such shares
were validly issued, fully paid and nonassessable. As of
June 30, 1996, (a) an aggregate of 2,598,530 options ("News
Corp. Options") over Ordinary Shares were outstanding under
News Corp. Executives' Share Option Scheme (the "Executive
Scheme"), (b) an aggregate of 1,299,265 News Corp. Options
over News Corp. Preferred Stock were outstanding under the
Executive Scheme, (c) an aggregate of 5,335,319 News Corp.
Options over News Corp. Ordinary Shares were outstanding
under News Corp. Share Option Plan (the "Plan"), (d) an
aggregate of 4,892,659 News Corp. Options over News Corp.
Preferred Stock were outstanding under the Plan, (e) warrants
to purchase an aggregate of 209,708,738 News Corp. Ordinary
Shares (the "News Corp. Warrants") were outstanding, (f)
209,708,738 News Corp. Ordinary Shares were reserved for
issuance upon exercise of News Corp. Warrants, (g) 4,690,938
News Corp. Ordinary Shares and 2,345,469 shares of News Corp.
Preferred Stock were reserved for issuance upon conversion of
Zero Coupon Exchangeable Notes due March 2002, (h) 85,356,000
News Corp. Ordinary Shares and 42,678,000 shares of News
Corp. Preferred Stock were reserved for issuance upon
conversion of Liquid Yield Option Notes (LYON's) due March
11, 2013, and (i) 25,000,000 News Corp. Ordinary Shares and
12,500,000 shares of News Corp. Preferred Stock were reserved
for issuance upon conversion of News Corp. Convertible Stock
on September 13, 1998 (the "Conversion Date"), provided News
Corp. Ordinary Share price is A$21.62 per share or greater on
the Conversion Date. (If the News Corp. Ordinary Share price
is below A$21.62 per share the number of shares to be issued
on conversion will be determined by dividing the adjusted
share price into A$500 million. The adjusted share price
will be calculated as 92.5% of the weighted average sale
price during the 10 trading days prior to the Conversion
Date.) Except as set forth above, as of June 30, 1996, no
shares of capital stock or other voting securities of News
Corp. were issued, reserved for issuance or outstanding and,
since such date, no shares of capital stock or other voting
securities or options in respect thereof have been issued
except (x) upon the exercise of News Corp. Stock Options
outstanding on June 30, 1996 or (y) upon the conversion of
convertible securities or upon the exercise of News Corp.
Warrants, in each case outstanding on June 30, 1996. Except
as set forth above, and except with respect to agreements
between News Corp. and MCI Communications Corporation and the
Scheme of Arrangement involving News Corp. and News
International plc, the terms of which were previously
disclosed to the Company, and except as contemplated herein,
as of June 30, 1996 (i) there are no options or agreements
relating to the issued or unissued capital stock of News
Corp. or any News Corp. Subsidiary, or obligating News Corp.
or any News Corp. Subsidiary to issue, transfer, grant or
sell any shares of capital stock of, or other equity
interests in, or securities convertible into or exchangeable
for any capital stock or other equity interests in, News
Corp. or any News Corp. Subsidiary, (ii) there are no
outstanding contractual obligations of News Corp. or any News
Corp. Subsidiary to repurchase, redeem or otherwise acquire
any shares of News Corp. capital stock or any shares of
capital stock of any News Corp. Subsidiary, (iii) the
shareholders of News Corp. have no preemption rights with
respect to the News Corp. Preferred Shares underlying the
News Corp. Preferred ADRs to be delivered pursuant to this
Agreement and (iv) the issuance of the News Corp. Preferred
Shares underlying the News Corp. Preferred ADRs to be
delivered by the Purchaser pursuant to this Agreement will
not result in an adjustment of the exercise price or number
of shares issuable upon exercise in respect of any options,
warrants or convertible securities of News Corp.
Section 4.3 Validity of News Corp. Preferred Stock
and News Corp. Preferred ADRs. The News Corp. Preferred ADRs
to be delivered pursuant to this Agreement will be issued by
the Depositary (as defined in Section 5.12) under the terms
of the Deposit Agreement (as defined in Section 5.12). All
of the shares of News Corp. Preferred Stock underlying News
Corp. Preferred ADRs to be delivered pursuant to this
Agreement, when paid for by Fox and deposited in accordance
with Section 5.12 and the terms of the Deposit Agreement,
will be duly authorized, validly issued, fully paid and
nonassessable, and free and clear of any Liens. Upon the due
issuance by the Depositary of News Corp. Preferred ADRs
evidencing News Corp. Preferred Stock against the deposit of
News Corp. Preferred Stock in accordance with the terms of
the Deposit Agreement, the News Corp. Preferred ADRs to be
delivered pursuant to this Agreement will be duly and validly
issued and persons in whose names such News Corp. Preferred
ADRs are registered will be entitled to the rights of
registered holders of News Corp. Preferred ADRs specified
therein and in the Deposit Agreement, and such News Corp.
Preferred ADRs will conform in all material respects to the
description of News Corp. Preferred ADRs contained in the
Registration Statement. The Deposit Agreement has been duly
and validly authorized by all necessary corporate action of
News Corp., and, assuming the due authorization, execution
and delivery thereof by the Depositary, has been duly and
validly executed and delivered by News Corp., and constitutes
the legal, valid and binding obligation of News Corp.,
enforceable against News Corp. in accordance with its terms,
except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to
creditors' rights generally and by equitable principles to
which the remedies of specific performance and injunctive and
similar forms of relief are subject. The Seller will not be
liable for any stamp duty or other issuance or transfer taxes
or duties in connection with (a) the issuance and delivery of
the News Corp. Preferred Stock underlying the News Corp.
Preferred ADRs to be delivered pursuant this Agreement, (b)
the deposit with the Custodian of the News Corp. Preferred
Stock underlying the News Corp. Preferred ADRs to be
delivered pursuant to this Agreement, (c) the issuance and
delivery of the News Corp. Preferred ADRs to be delivered
pursuant to this Agreement or (d) the consummation of any
other Transaction.
Section 4.4 Authority Relative to This Agreement.
(a) Each of News Corp. and the Purchaser has all necessary
corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to
consummate the Transactions.
(b) The execution and delivery of this
Agreement by News Corp. and the Purchaser and the
consummation by News Corp. and the Purchaser of the
Transactions have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings
on the part of News Corp. or the Purchaser are necessary to
authorize this Agreement or to consummate the Transactions.
This Agreement has been duly and validly executed and
delivered by News Corp. and the Purchaser and, assuming the
due authorization, execution and delivery thereof by the
Seller, constitutes the legal, valid and binding obligation
of each of News Corp. and the Purchaser, enforceable against
News Corp. and the Purchaser in accordance with its terms,
except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to
creditors' rights generally and by equitable principles to
which the remedies of specific performance and injunctive and
similar forms of relief are subject and except that rights to
indemnity hereunder may be subject to Federal or state
securities laws or the policies underlying such laws.
Section 4.5 No Conflict; Required Filings and
Consents. (a) The execution and delivery of this Agreement
by News Corp. and the Purchaser do not, and the performance
of their respective obligations under this Agreement and the
consummation of the Transactions by News Corp. and the
Purchaser will not, (i) conflict with or violate the articles
of incorporation or bylaws or equivalent organizational
documents of News Corp., the Purchaser or any other Material
News Corp. Subsidiary, (ii) subject to making the filings and
obtaining the approvals identified in Section 4.5(b),
conflict with or violate any Law applicable to News Corp.,
the Purchaser or any other Material News Corp. Subsidiary or
by which any property or asset of News Corp., the Purchaser
or any other Material News Corp. Subsidiary is bound or
affected, or (iii) subject to making the filings and
obtaining the approvals identified in Section 4.5(b),
conflict with or result in any breach of or constitute a
default (or an event which with notice or lapse of time or
both would become a default) under, result in the loss (by
News Corp., the Purchaser or any other Material News Corp.
Subsidiary) or modification in a manner materially adverse to
News Corp., the Purchaser and the other News Corp.
Subsidiaries of a material right or benefit under, or give to
others any right of termination, amendment, acceleration,
repurchase or repayment, increased payments or cancellation
of, or result in the creation of any Liens on any property or
asset of News Corp., the Purchaser or any other Material News
Corp. Subsidiary pursuant to, any Contract to which News
Corp., the Purchaser or any other Material News Corp.
Subsidiary is a party or by which News Corp., the Purchaser
or any other Material News Corp. Subsidiary or any property
or asset of News Corp., the Purchaser or any other Material
News Corp. Subsidiary is bound, except, in the case of
clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences which would not
prevent or delay in any material respect consummation of the
Transactions, or otherwise, individually or in the aggregate,
prevent News Corp. or the Purchaser from performing their
respective obligations under this Agreement in any material
respect, and would not, individually or in the aggregate,
have a News Corp. Material Adverse Effect. No authorization,
approval or consent of any Governmental Entity in Australia
is currently required to effect dividend payments on the News
Corp. Preferred Shares to be delivered to the Custodian
pursuant to Section 5.12 or for the Depositary to effect
dividend payments on the News Corp. Preferred ADRs to be
delivered by the Purchaser pursuant to this Agreement.
(b) Except as set forth in Section 4.5 of
the disclosure letter from News Corp., dated the date hereof,
addressed to the Seller (the "News Corp. Disclosure Letter"),
the execution and delivery of this Agreement by News Corp.
and the Purchaser do not, and the performance of their
respective obligations under this Agreement and the
consummation of the Transactions by News Corp. and the
Purchaser will not, require any consent, approval,
authorization or permit of, or filing with or notification
to, any Governmental Entity, except (i) for (A) applicable
requirements, if any, of the Exchange Act, the Securities Act
or the Blue Sky Laws, (B) the pre-merger notification
requirements of the HSR Act, (C) the approval of the
Transactions by the FCC under the Communications Act and the
FCC Rules, and (D) the filing of listing applications and the
filing of an application for quotation with the stock
exchanges on which News Corp. Preferred Stock and News Corp.
Preferred ADRs are listed or quoted, and (ii) where the
failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not,
individually or in the aggregate, prevent or delay in any
material respect consummation of the Transactions, or
otherwise prevent News Corp. or the Purchaser from performing
its obligations under this Agreement in any material respect,
and would not, individually or in the aggregate, have a News
Corp. Material Adverse Effect.
Section 4.6 SEC Reports and Financial Statements.
Each form, report, schedule and registration statement filed
by News Corp. with the SEC since December 31, 1994 and prior
to the date hereof (as such documents have been amended prior
to the date hereof, the "News Corp. SEC Reports"), as of
their respective dates, complied in all material respects
with the applicable requirements of the Securities Act and
the Exchange Act and the rules and regulations thereunder.
None of the News Corp. SEC Reports, as of their respective
dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except for such statements, if any, as have been
modified or superseded by subsequent filings prior to the
date hereof. The consolidated financial statements of News
Corp. and the News Corp. Subsidiaries included in such
reports have been prepared in accordance with Australian
generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as
may be indicated in the notes thereto) and give a true and
fair view (subject, in the case of the unaudited interim
financial statements, to normal, year-end audit adjustments)
of the consolidated financial position of News Corp. and the
News Corp. Subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for
the periods then ended, and such financial statements and the
reconciliations to United States generally accepted
accounting principles comply as to form in all material
respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect
thereto. Since March 31, 1996, neither News Corp. nor any of
the News Corp. Subsidiaries has incurred any liabilities or
obligations (whether absolute, accrued, fixed, contingent,
liquidated, unliquidated or otherwise and whether due or to
become due) of any nature, except liabilities, obligations or
contingencies (a) which are reflected on the unaudited
balance sheet of News Corp. and the News Corp. Subsidiaries
as at March 31, 1996 (including the notes thereto), or
(b) which (i) were incurred in the ordinary course of
business after March 31, 1996 and consistent with past
practices, (ii) are disclosed in the News Corp. SEC Reports
filed after March 31, 1996 or (iii) would not, individually
or in the aggregate, have a News Corp. Material Adverse
Effect. Since March 31, 1996, there has been no change in
any of the significant accounting (including tax accounting)
policies, practices or procedures of News Corp. or any News
Corp. Material Subsidiary.
Section 4.7 Absence of Certain Changes or Events.
Except as contemplated by this Agreement or as disclosed in
any News Corp. SEC Report, since March 31, 1996, (a) News
Corp. and the News Corp. Subsidiaries have conducted their
respective businesses only in the ordinary course, consistent
with past practice, and have not taken any of the actions set
forth in Section 5.2 hereof, and (b) there has not occurred
or arisen any event that, individually or in the aggregate,
has had or, insofar as reasonably can be foreseen, is likely
in the future to have, a News Corp. Material Adverse Effect,
other than events or developments generally affecting the
industry in which News Corp. and the News Corp. Subsidiaries
operate.
Section 4.8 Litigation. Except as disclosed in
Section 4.8 of the News Corp. Disclosure Letter or in the
News Corp. SEC Reports, there are no claims, suits, actions
or proceedings pending or, to News Corp.'s knowledge,
threatened or contemplated, nor are there any investigations
or reviews by any Governmental Entity pending or, to News
Corp.'s knowledge, threatened or contemplated, against,
relating to or affecting News Corp. or any of the News Corp.
Subsidiaries, which could reasonably be expected to have,
individually or in the aggregate, a News Corp. Material
Adverse Effect, or to prohibit or materially restrict the
consummation of the Transactions, nor is there any judgment,
decree, order, injunction, writ or rule of any court,
governmental department, commission, agency, instrumentality
or authority or any arbitrator outstanding against News Corp.
or any News Corp. Subsidiary having, or which, insofar as can
be reasonably foreseen, in the future is likely to have, any
such News Corp. Material Adverse Effect. In addition, there
have not been any developments with respect to any of the
claims, suits, actions, proceedings, investigations or
reviews disclosed in the News Corp. SEC Reports filed prior
to the date hereof which, insofar as can be reasonably
foreseen, in the future are likely to have a News Corp.
Material Adverse Effect.
Section 4.9 Registration Statement. The
information supplied or to be supplied by News Corp., any
News Corp. Subsidiary or their respective Representatives for
inclusion in the Registration Statement will not, either at
the time the Registration Statement is filed with the SEC, at
the time any amendment thereof or supplement thereto is filed
with the SEC, or at the time it becomes effective under the
Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Registration Statement, other than as to
information supplied by the Seller or its Representatives,
will comply in all material respects with the provisions of
the Securities Act and the rules and regulations promulgated
thereunder.
Section 4.10 FCC Qualification. Except as
expressly contemplated by the third sentence of Section
5.3(b), (a) the Purchaser is, for purposes of obtaining the
approval of the FCC under the Communications Act, legally,
financially and otherwise qualified to acquire control of the
Company, and (b) after due investigation, neither News Corp.
nor the Purchaser is aware of any other facts or
circumstances that might prevent or delay the prompt approval
of the FCC under the Communications Act.
Section 4.11 Brokers. No broker, finder,
investment banker or other person is entitled to any
brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on
behalf of News Corp. or the Purchaser.
ARTICLE V
COVENANTS
Section 5.1 Conduct of Business of the Seller and
Holdings Pending the Closing. The Seller covenants and
agrees that (a) until the Closing, (i) the Seller will cause
Holdings not to issue or authorize the issuance of, grant or
otherwise create any additional shares of, or any options to
acquire any shares of, its capital stock or any debt or
equity securities convertible into or exchangeable for such
capital stock and (ii) except as set forth in Section 5.1 of
the Seller Disclosure Letter or except as contemplated by
this Agreement, the Seller will not, and will cause Holdings
not to, sell, pledge or otherwise dispose of any capital
stock of Holdings or the Company and (b) as of the Closing,
the Seller will cause Holdings not to have any liabilities or
obligations other than the Holdings Notes, liabilities and
obligations under the Indenture, dated as of June 30, 1994,
as amended and restated, as in effect on the date hereof,
between Holdings and Nationsbank of Georgia, N.A., as Trustee
(the "Indenture"), and those immaterial liabilities and
obligations incurred in the ordinary course of business in
connection with maintaining the corporate existence of
Holdings, in connection with and reasonably incident to
Holding's obligations under the Holdings Notes and the
Indenture, or which are set forth in Section 5.1 of the
Seller Disclosure Letter.
Section 5.2 Conduct of Business of the Purchaser
and News Corp. Pending the Closing. Each of the Purchaser
and News Corp. covenants and agrees that, except as expressly
permitted or contemplated by this Agreement, until the
Effective Time, unless the Seller shall otherwise agree in
writing prior to the taking of any action otherwise
prohibited by the terms of this Section 5.2, News Corp.
shall, and shall cause each News Corp. Subsidiary (other than
the Purchaser and its Subsidiaries) to, and the Purchaser
shall, and shall cause its Subsidiaries to, conduct its
operations and business in the ordinary and usual course of
business. Without limiting the generality of the foregoing,
and except as otherwise expressly permitted or contemplated
by this Agreement, prior to the Effective Time, without the
prior written consent of the Seller, which consent will not
be unreasonably withheld, News Corp. will not, and will cause
each News Corp. Subsidiary (other than the Purchaser and its
Subsidiaries) not to, and the Purchaser will not, and will
cause its Subsidiaries not to (a) amend its articles of
association or by-laws or equivalent organizational documents
in any manner that would be adverse to the holders of News
Corp. capital stock, or, unless appropriate adjustment is
made in the Exchange Ratio (as defined in the Merger
Agreement), subdivide, reclassify, recapitalize, split,
combine or exchange any of its shares of capital stock, or
(b) take, or permit any affiliate to take, any action that is
reasonably likely to delay, or adversely impact, the approval
by any Governmental Entity of the Transactions contemplated
hereby.
Section 5.3 Governmental Approvals. (a) As
promptly as practicable after the execution of this
Agreement, if required, News Corp., the Purchaser and the
Seller shall file notification reports under the HSR Act and
shall request early termination of the waiting period under
the HSR Act. News Corp., the Purchaser and the Seller shall
request early termination of the waiting period under the HSR
Act and use their commercially reasonable efforts to obtain
clearance or authorization under the HSR Act of the
transactions contemplated by this Agreement and the Merger
Agreement at the earliest practicable time.
(b) The Purchaser and the Company have
jointly filed with the FCC all requisite applications and
other necessary documents to obtain approval of the
Transactions by the FCC. The Seller, News Corp. and the
Purchaser shall cooperate and use their commercially
reasonable efforts to obtain all required consents and
approvals (including approvals of the FCC to the transfer of
control of the entities that are controlled by the Seller and
hold licenses issued by the FCC) and consents from
governmental agencies and third parties, including, without
limitation, taking all action necessary, including
commitments by News Corp., the Purchaser and their
Subsidiaries to divest WITI, Channel 6, Milwaukee, Wisconsin,
if necessary in order to comply with the FCC's present rules.
Notwithstanding the foregoing, the Purchaser will not be
required to take any action to reduce the percentage of U.S.
television households served by stations in which the
Purchaser or its Subsidiaries have an attributable interest
below 35%, as computed pursuant to the FCC's present rules,
to the extent that such excess is due to (i) the Company's
failure to divest the assets of KNSD, Channel 39, San Diego,
California pursuant to the Asset Purchase Agreement, dated as
of May 22, 1996, with National Broadcasting Company, Inc.
("NBC") with respect to the sale to NBC or another buyer on
similar terms of all of the assets related to KNSD-TV,
Channel 00, Xxx Xxxxx, Xxxxxxxxxx (such agreement, together
with the Asset Purchase Agreement, dated as of May 22, 1996,
with NBC with respect to the sale to NBC of all of the assets
related to WVTM-TV Channel 13, Birmingham, Alabama, being
referred to collectively as the "NBC Agreements"), or (ii)
changes in the current FCC attribution or multiple ownership
rules that result in an FCC attribution to the Purchaser of
interests held by the Purchaser as of July 17, 1996 if such
interests were not attributed to the Purchaser as of such
date.
Section 5.4 Access to Information. Subject to
applicable law, from the date hereof to the Effective Time,
the Seller shall (and shall cause its Subsidiaries and
officers, directors, employees, auditors and agents to)
afford the officers, employees, auditors and agents (the
"Representatives") of News Corp. and the Purchaser reasonable
access at reasonable times to its officers, employees,
agents, properties, offices, plants and other facilities,
books, records and Tax Returns, provided, that the Seller
and its affiliates shall not be required to make available
any of their Tax Returns or information set forth therein
except for such information as relates exclusively to
Holdings, and shall furnish such Representatives with all
financial, operating and other data and information as may be
reasonably requested. All information obtained will be
subject to the Confidentiality Agreement among the Company,
News Corp., Holdings and the Seller, dated as of July 17,
1996 (the "Confidentiality Agreement").
Section 5.5 Further Action, Reasonable Efforts.
(a) Upon the terms and subject to the conditions hereof,
each of the parties hereto shall use commercially reasonable
efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to
consummate and make effective the Transactions, including,
without limitation, using commercially reasonable efforts to
obtain all licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental
Entities, make all filings and required submissions with
Governmental Entities, including foreign filings and
submissions, and obtain all consents and approvals from
parties to Contracts with the parties to this Agreement or
their respective Subsidiaries as are necessary for the
consummation of the Transactions. In case at any time after
the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, the
proper officers and directors of the parties to this
Agreement or their respective Subsidiaries shall use their
reasonable efforts to take all such action.
(b) Each of the parties to this Agreement and
their respective Subsidiaries shall use its commercially
reasonable efforts not to take any action, or enter into any
transaction, which would result in a breach of any
representation, warranty, covenant or agreement made by such
party in this Agreement.
Section 5.6 Public Announcements. Each of the
parties to this Agreement and their respective Subsidiaries
shall consult with each other before issuing any press
release or otherwise making any public statements with
respect to this Agreement or any of the Transactions and
shall not issue any such press release or make any such
public statement without the prior consent of the other
parties to this Agreement, which consent shall not be
unreasonably withheld; provided, however, that any such
person may, without the prior consent of the other parties to
this Agreement, issue such press release or make such public
statement as may be required by law or any listing agreement
or arrangement to which any such person is a party with a
national securities exchange or if it has used all reasonable
efforts to consult with the other parties to this Agreement
and to obtain such parties' consent but has been unable to do
so in a timely manner.
Section 5.7 Notification of Certain Matters. News
Corp. and the Purchaser shall give prompt notice to the
Seller, and the Seller shall give prompt notice to News Corp.
and the Purchaser, of (a) the occurrence or nonoccurrence of
any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in
this Agreement to be untrue or any covenant, condition or
agreement contained in this Agreement not to be complied with
or satisfied and (b) any failure of News Corp., the Purchaser
or the Seller, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 5.7 shall not
limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
Section 5.8 Registration Statement. News Corp.
shall use its commercially reasonable efforts to cause the
Registration Statement (as defined in the Merger Agreement)
to include a resale prospectus that would permit the Seller
or any affiliate thereof (or any pledgee of News Corp.
Preferred ADRs under a bona fide pledge arrangement with the
Seller) (whether offered for sale directly or in connection
with the issuance of debt, equity or other securities
(including, without limitation, any options, rights, warrants
or similar securities) of Seller (or an affiliate of Seller
or an entity established by or at the request of Seller or an
affiliate of Seller) that are or may be exchangeable or
exercisable for or convertible into News Corp. Preferred
ADRs or News Corp. Preferred Shares) to sell without
restriction all News Corp. Preferred ADRs delivered to the
Seller pursuant to this Agreement or issued to the Seller or
any of its affiliates pursuant to the exercise of warrants to
purchase shares of capital stock of the Company and, after
the filing of the Registration Statement, shall use its
commercially reasonable efforts to prepare and file with the
SEC such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep such
Registration Statement continuously effective for a period
ending on the second anniversary of the Closing, and during
such period shall use its commercially reasonable efforts to
cause the resale prospectus to be supplemented by any
required prospectus supplement. In addition, the provisions
of the Registration Rights Agreement (as defined in Section
5.9) applicable to the Shelf Registration (as defined in
Section 2(a) of the Registration Rights Agreement),
including, without limitation, the provisions with respect to
blue sky, listing, payment of expenses and indemnification,
shall be applicable to the Registration Statement.
Section 5.9 Registration Rights Agreement. Prior
to the Closing Date, News Corp. and the Purchaser shall enter
into a Registration Rights Agreement in the form of Exhibit A
hereto (the "Registration Rights Agreement") with the Seller.
Section 5.10 Cooperation With Respect to Certain
Tax Matters.
(a) The Purchaser recognizes that Holdings
has joined with the Seller in filing unitary, consolidated or
combined Tax Returns. After the Closing Date (i) the Seller
shall include (to the extent required by law) the taxable
income or loss, and all other items, of Holdings for periods
ending on or before the Closing Date, in its unitary,
consolidated or combined Tax Returns, and (ii) with respect
to any other Tax Returns for any taxable period that includes
but does not end on the Closing Date (the "Straddle Tax
Returns"), the Seller shall prepare a schedule allocating the
taxable income or loss, and all other items, of Holdings to
the period commencing with the first day of the taxable
period covered by such Straddle Tax Return up to and
including the Closing Date (excluding taxable income or loss,
and all other items, of the Company arising after the closing
of the Merger) (the "Pre-Closing Period") and the period
commencing with the first day after the Closing Date and
ending with the last day of the taxable period covered by
such Straddle Tax Return (including taxable income or loss,
and all other items, of the Company arising after the closing
of the Merger) (the "Post-Closing Period") by closing the
books of Holdings after the consummation of the Merger.
Holdings shall file any Straddle Tax Returns on the basis of
the allocation of income, loss or other items agreed to by
the Purchaser and Seller. With respect to each Straddle Tax
Return filed by Holdings, Seller shall pay to Holdings the
Tax liability determined to be attributable to the Pre-
Closing Period on the basis of the allocation determined
under this Section within 10 days after the filing of such
Tax Return.
(b) The Seller shall be responsible for, and
shall have ultimate discretion with respect to, (i) all Tax
Returns required or permitted by applicable law to be filed
by Holdings (or by the Seller on its behalf) with respect to
periods that end on or before the Closing Date, (ii) any
elections related to such Tax Returns, which must be
reasonably acceptable to the Purchaser, and (iii)
notwithstanding anything herein to the contrary, any audit,
assessment of Taxes, other examination by any Tax authority,
proceeding or appeal of such proceeding relating to Taxes
("Audit") (including the execution of any waiver of
limitation with respect to any Audit) relating to any such
Tax Returns. The Purchaser and Holdings shall cooperate with
the Seller for the purpose of making any election under
applicable law which will not adversely affect Holdings or
the Purchaser. In the event that any Audit for which the
Seller is responsible pursuant to this Section 5.10(b) could
reasonably be expected to result in a material increase in
Tax liability for which the Purchaser or Holdings would be
liable, the Seller shall consult in good faith with the
Purchaser or Holdings, as the case may be, in respect of the
specific issues that could give rise to such increased Tax
liability and will not terminate or settle such Audit without
the prior written consent of the Purchaser and Holdings,
which consent will not be unreasonably withheld.
(c) The Purchaser and Holdings shall be
responsible for, and shall have ultimate discretion with
respect to, (i) all Tax Returns required to be filed by
Holdings with respect to periods that begin after the Closing
Date and (ii) the Straddle Tax Returns, if any, and (iii) any
Audit (including the execution of any waiver of limitation
with respect to any Audit) relating to any such Tax Returns;
provided, however, that (A) in the case of any Straddle Tax
Return, the preparation and filing of such Return shall be
subject to review by the Seller, and (B) in the event that
any Audit for which the Purchaser is responsible pursuant to
this Section 5.10(c) could reasonably be expected to result
in a material increase in Tax liability for which the Seller
would be liable, the Purchaser shall consult in good faith
with the Seller in respect of the specific issues that could
give rise to such increased Tax liability and will not
terminate or settle such Audit without the prior written
consent of the Seller, which consent will not be unreasonably
withheld.
(d) After the Closing Date, each of the
Purchaser and Holdings, on the one hand, and the Seller, on
the other, shall (i) provide, or cause to be provided, to
each other's respective Subsidiaries, officers, employees,
accountants, representatives and affiliates, such information
(including, without limitation, accounting, audits, and
related schedules), access and assistance as may reasonably
be requested, including making available employees and the
books and records of Holdings and the Company, by any of them
in connection with the preparation of SEC reports, forms,
schedules and registration statements or other financial
accounting statements of or by Holdings or Seller or any of
their respective affiliates or any Tax Return or any Audit of
Holdings or any of its affiliates in respect of which the
Purchaser, Holdings or the Seller, as the case may be, is
responsible pursuant to Sections 5.10(b) or 5.10(c) hereof
and (ii) retain, or cause to be retained, for so long as any
such taxable years or Audits shall remain open for
adjustments, any records or information which may be relevant
to any such Tax Returns or Audits. Notwithstanding anything
to the contrary in this Agreement, neither News Corp. and the
News Corp. Subsidiaries nor Seller and its affiliates shall
be required to make available any of their Tax Returns or
information set forth therein except for such information as
relates exclusively to Holdings.
(e) Each of the Purchaser, Holdings and the
Seller shall (i) promptly inform the other party of, (ii)
keep the other party regularly apprised of the progress with
respect to, and (iii) notify the other party in writing not
later than (A) ten business days after the receipt of any
notice of or (B) fifteen business days prior to the
settlement or final determination of, any Audit for which it
was responsible pursuant to Sections 5.10(b) or 5.10(c)
hereof which could affect the Tax liability of such other
party for any taxable year.
(f) Unless otherwise required by law,
Holdings (or any affiliate of Holdings prior to the Closing
Date on behalf of Holdings) shall not make any election for
Federal, state, local or foreign tax purposes with respect to
a Pre-Closing period or any taxable period of Holdings ending
on or prior to the Closing Date, which adversely affects the
Tax attributes of Holdings.
(g) Section 338(h)(10) Election.
(i) If so requested by the
Purchaser upon notice to the Seller on or before
the Closing Date, the Seller and the Purchaser
shall jointly make an election under section
338(h)(10) of the Code with respect to the sale of
the Holdings Shares (the "Election"). The
Purchaser shall take all necessary steps to
properly make a section 338(g) election (as
hereinafter defined) in connection with the
Election. The Purchaser and the Seller agree to
cooperate in good faith with each other in the
preparation and timely filing of any Tax Returns
required to be filed in connection with the making
of such an election, including the exchange of
information and the joint preparation and filing of
Form 8023-A and related schedules. The Purchaser
and the Seller agree to report the transfers under
this Agreement consistent with such elections and
shall take no position contrary thereto unless
required to do so by applicable tax law as a result
of a determination as defined in section 1313(a) of
the Code or pursuant to this Section 5.10(g).
(ii) The Purchaser shall be
responsible for the preparation and filing of all
forms required to be filed in connection with the
Election. The Purchaser shall deliver such forms
to the Seller at least 30 days prior to the date
such forms are required to be filed. All such
forms must be reasonably acceptable to the Seller.
The Seller shall execute and deliver to the
Purchaser such documents or forms as are requested
and are required by any laws in order to file such
election properly within 20 days of the request by
the Purchaser for such forms. The Seller shall
provide the Purchaser with such information as the
Purchaser reasonably requests in order to prepare
the section 338 forms within 30 days after the
Purchaser's request for such information.
(iii) Notwithstanding any other
provision of this Agreement, the Seller agrees that
any income and gain recognized as a result of, and
in accordance with, the making of the Election will
be included in the consolidated Federal income tax
return of the consolidated group that includes the
Seller and any resulting tax liability will be paid
by the Seller or the consolidated group that
includes the Seller.
(iv) Without the written approval of
the Seller, the Purchaser will not make any filings
in state or local jurisdictions with respect to the
Election.
(v) The Seller and the Purchaser
agree that, for purposes of the Election, the price
for the Holdings Shares is the amount deemed paid
for the shares of the Company owned by Holdings on
the Closing Date and agree to file all Tax Returns
relating to the Election in accordance with this
allocation.
(h) In the event that subsequent to the
consummation of the Transactions, Holdings has Tax attributes
that are carriedback under applicable Tax law to a Tax Return
for a taxable period ending on or before the Closing Date
which included Holdings, any Tax benefit resulting therefrom
shall be paid to the Purchaser within three days of the
receipt of the refund from the applicable Tax authority. The
amount of the Tax benefit shall be reasonably determined by
the Seller or its affiliates. In no event will the Purchaser
or its affiliates have any right to review the Tax Returns of
the Seller or its affiliates or to have access to the
information used or contained in such Tax Returns by reason
of this provision.
Section 5.11 Other Agreements. Fox shall cause
the Company, immediately after the closing of the Merger, to
enter into agreements with AGI, in form and substance
reasonably satisfactory to the Seller, terminating and fully
releasing any party thereto from any further obligation under
the Non-competition Agreement between the Company and AGI,
dated as of March 9, 1994, and the Indemnification Agreement
between the Company and AGI, dated as of March 9, 1994.
Section 5.12 News Corp. Preferred ADRs. Prior to
the Closing, Fox shall (a) pay News Corp. consideration to be
agreed upon by Fox and News Corp. for the issuance of the
shares of News Corp. Preferred Stock underlying the News
Corp. Preferred ADRs to be issued pursuant to this Agreement,
and (b) procure that News Corp., pursuant to the terms of the
Deposit Agreement (as defined below), (i) deposits with the
Custodian (as defined in the Deposit Agreement) the shares of
News Corp. Preferred Stock underlying the News Corp.
Preferred ADRs to be issued pursuant to this Agreement and
(ii) instructs the Depositary to deliver the News Corp.
Preferred ADRs to be issued pursuant to this Agreement in
accordance with the written instructions of the Seller. For
purposes of this Agreement, "Depositary" shall mean Citibank,
N.A., as Depositary pursuant to the Deposit Agreement, dated
as of November 11, 1994, among News Corp., the Depositary and
the holders from time to time of News Corp. Preferred ADRs
(the "Deposit Agreement").
Section 5.13 NYSE; ASX. News Corp. shall (a)
promptly prepare and submit to the New York Stock Exchange
("NYSE") applications covering the News Corp. Preferred
ADRs to be issued pursuant to the Transactions and shall use
commercially reasonable efforts to cause such securities to
be approved for listing on the NYSE prior to the Effective
Time, subject to official notice of issuance, and (b) within
ten days after the Closing Date, prepare and submit to the
Australian Stock Exchange ("ASX") applications covering the
News Corp. Preferred Stock underlying the News Corp.
Preferred ADRs issued pursuant to the Transactions pursuant
to the Listing Rules of the ASX to cause such securities to
be approved for quotation by the ASX.
Section 5.14 Sovereign Immunity. News Corp.
hereby waives any immunity to which it may become entitled on
the basis of sovereignty or otherwise in respect of its
obligations under this Agreement and agrees not to interpose
any such immunity as a defense to any suit or action brought
or maintained in respect of News Corp.'s obligations under
this Agreement.
ARTICLE VI
CONDITIONS TO THE TRANSACTIONS
Section 6.1 The respective obligations of each
party to this Agreement to effect the Transaction shall be
subject to the following conditions:
(a) All conditions to the consummation of the
Merger (other than the condition that the transactions
contemplated by this Agreement shall have been consummated)
shall have been satisfied or waived and all actions necessary
to consummate the Merger other than the Merger Filing shall
have been taken.
(b) The Closing shall have occurred at or
before the close of business in New York City on June 30,
1997 (the "Outside Date").
(c) All necessary regulatory and governmental
approvals and consents, including, without limitation, the
approval of the FCC, shall have been obtained.
(d) Any applicable waiting period under the
HSR Act shall have expired or been terminated.
(e) No action shall have been taken, and no
statute, rule, regulation, executive order, judgment, decree,
or injunction (other than a temporary restraining order)
shall have been enacted, entered, promulgated or enforced
(and not repealed, superseded, lifted or otherwise made
inapplicable), by any court of competent jurisdiction or
Governmental Entity which restrains, enjoins or otherwise
prohibits the consummation of the Transactions (each party
agreeing to use its commercially reasonable efforts to avoid
the effect of any such statute, rule, regulation or order or
to have any such order, judgment, decree or injunction
lifted).
(f) The News Corp. Preferred ADRs shall have
been approved for listing on the NYSE, subject only to
official notice of issuance.
Section 6.2 Conditions to Obligations of the
Seller to Effect the Transactions. The obligations of the
Seller to effect the Transactions are subject to the
satisfaction of the following conditions, unless waived by
the Seller:
(a) The representations and warranties of
News Corp. contained herein that are qualified as to
materiality shall be true and accurate, and those not so
qualified shall be true and accurate in all material
respects, in each case at and as of the Closing with the same
force and effect as though made at and as of the Closing
(except to the extent a representation or warranty speaks
specifically as of an earlier date).
(b) Each of News Corp. and the Purchaser
shall have performed, in all material respects, all
obligations and complied, in all material respects, with all
covenants required by this Agreement to be performed or
complied with by it prior to the Closing.
(c) News Corp. shall have delivered to the
Seller a certificate, dated the Effective Time and signed by
its Chairman of the Board and Chief Executive Officer or
President, evidencing compliance with Sections 6.2(a) and
(b).
(d) The Purchaser shall have delivered to the
Seller a certificate, dated the Effective Time and signed by
its Chairman of the Board and Chief Executive or President,
evidencing compliance with Section 6.2(b).
(e) News Corp. shall have executed and
delivered the Registration Rights Agreement.
(f) The Assignment and Assumption Agreement,
dated as of the date hereof, between Fox and Four Star
Holdings Corp. shall be in full force and effect and Fox
shall have performed all of its obligations thereunder.
(g) The closing of the transactions
contemplated by the Purchase and Sale Agreement, dated as of
the date hereof, between the Purchaser and 1440 Xxxxxxxxx
Limited Partnership shall have occurred.
(h) The Company shall have received legal
opinions of Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP and
Xxxxx, Xxxxx & Xxxxxxx, counsel to News Corp. and Fox, in
form and substance reasonably acceptable to the Company and
its counsel, addressing the matters set forth in Exhibits B-1
and B-2, respectively.
Section 6.3 Conditions to Obligations of News
Corp. and the Purchaser to Effect the Transactions. The
obligations of News Corp. and the Purchaser to effect the
Transactions are subject to the satisfaction of the following
conditions, unless waived by News Corp. and the Purchaser:
(a) The representations and warranties of the
Seller contained herein that are qualified as to materiality
shall be true and accurate, and those not so qualified shall
be true and accurate in all material respects, in each case
at and as of the Closing with the same force and effect as
though made at and as of the Closing (except to the extent a
representation or warranty speaks specifically as of an
earlier date).
(b) The Seller shall have performed, in all
material respects, all obligations and complied, in all
material respects, with all covenants required by this
Agreement to be performed or complied with by it prior to the
Closing.
(c) The Seller shall have delivered to News
Corp. and the Purchaser a certificate, dated the Effective
Time and signed by its Chairman of the Board and Chief
Executive Officer or President, evidencing compliance with
Sections 6.3(a) and (b).
(d) News Corp. and Fox shall have received
the legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx,
counsel to the Company, in form and substance reasonably
acceptable to New Corp. and Fox and their counsel, addressing
the matters set forth in Exhibit C.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be
terminated and abandoned at any time prior to the Closing:
(a) by the mutual written consent of the
Seller, the Purchaser and News Corp.;
(b) by the Seller, the Purchaser or News
Corp., if (i) the Closing shall not have occurred on or
before the Outside Date or (ii) any court of competent
jurisdiction in the United States or any other jurisdiction
shall have issued an order, judgment or decree (other than a
temporary restraining order) restraining, enjoining or
otherwise prohibiting the Merger or the other material
Transactions and such order, judgment or decree shall have
become final and nonappealable; provided, however, that the
right to terminate this Agreement pursuant to clause
(i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur
on or before such date;
(c) by the Seller, if there has been a
material breach by News Corp. or the Purchaser, as the case
may be, of any representation, warranty, covenant or
agreement set forth in this Agreement, which breach has not
been cured within ten Business Days following receipt by News
Corp. or the Purchaser, as the cas may be, of notice of such
breach from the Seller; provided, however, that the right to
terminate this Agreement pursuant to this Section 7.1(c)
shall not be available to the Seller if the Seller, at such
time, is in material breach of any representation, warranty,
covenant or agreement set forth in this Agreement;
(d) by News Corp. or the Purchaser, if there
has been a material breach by the Seller of any
representation, warranty, covenant or agreement set forth in
this Agreement, which breach has not been cured within ten
Business Days following receipt by the Seller of notice of
such breach from News Corp. or the Purchaser; provided,
however, that the right to terminate this Agreement pursuant
to this Section 7.1(d) shall not be available to News Corp.
or the Purchaser if News Corp. or the Purchaser, at such
time, is in material breach of any representation, warranty,
covenant or agreement set forth in this Agreement;
(e) by News Corp. or the Purchaser, if:
(i) the Merger Agreement is
terminated in accordance with its terms;
(ii) the Seller or any of its
affiliates enters into any agreement to consummate
a Qualifying Proposal (as defined below); or
(iii) the Seller's board of directors
approves or recommends any Qualifying Proposal; and
(f) by the Seller if the Seller's board of
directors approves, and the Seller enters into, an agreement
providing for a Qualifying Proposal. For purposes of this
Agreement, a "Qualifying Proposal" shall mean a written, bona
fide Acquisition Proposal (as defined below) that the
Seller's board of directors (i) determines is reasonably
capable of being financed and (ii) determines, after
consultation with its financial advisors, provides
consideration to the holders of the Seller's capital stock
that is more favorable than that provided by the
Transactions. For purposes of this Agreement, an
"Acquisition Proposal" shall mean a merger or other business
combination involving the Seller or Holdings, or an offer to
acquire in any manner, directly or indirectly, an equity
interest in, substantially all of the equity securities of,
or a substantial portion of the assets of the Seller or
Holdings.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
Section 8.1 Survival. The representations and
warranties of the Seller and News Corp. contained in this
Agreement shall not survive the Closing, provided, that (a)
the representations and warranties of the Seller contained in
Sections 3.1 through 3.5 and the representations and
warranties of News Corp. contained in Section 4.1 through 4.5
shall survive the Closing indefinitely, (b) the
representations and warranties of the Seller contained in
Sections 3.6, 3.7, 3.9, 3.10 and 3.11 and the representations
and warranties of News Corp. contained in Section 4.9 shall
survive the Closing for a period of one year and (c) and the
representations and warranties of the Seller contained in
Section 3.8(g) shall survive the Closing for a period of
three years. The covenants and agreements contained in this
Agreement shall survive the Closing indefinitely.
Section 8.2 Indemnification.
(a) By the Seller. The Seller hereby agrees
to indemnify and hold harmless News Corp., Fox and the
Surviving Corporation from and against any and all damages,
claims, losses or reasonable expenses, including reasonable
fees and expenses of counsel ("Damages"), actually suffered
(i) as a result of a breach of any representation or warranty
made by the Seller in Section 3.1 through 3.7, 3.8(g), 3.9,
3.10 or 3.11 for claims made during the respective survival
period of such representations and warranties pursuant to
Section 8.1, provided, that Damages actually suffered as a
result of a breach of any representation or warranty made by
the Seller in Section 3.6 or 3.9 as to the Holdings SEC
Reports shall not have resulted from information contained
therein relating to any Subsidiaries of Holdings, including,
without limitation, the Company and its Subsidiaries to the
extent included in any consolidated financial statements of
Holdings or otherwise, and, provided, further, that for the
Buyer to claim indemnification as a result of a breach of any
representation made by the Seller in Section 3.8(g), (A) News
Corp. and its affiliates (including the Company) must
consistently file Tax Returns after the Closing on the basis
that they qualify for the exceptions set forth in Section
3.8(g) and (B) any Tax liability resulting from the failure
to qualify for such exceptions must be directly caused by the
failure of the Company to comply with its obligations under
Section 3.8(g) and not by any action of News Corp. or any of
its affiliates (including the Company) that occur after the
Closing, or (ii) as a result of any claim arising as a result
of the Transactions that is asserted (A) pursuant to Section
5.01 of the Stockholders Agreement, dated as of May 25, 1993,
by and among SCI Television, Inc., Xxxxxxx Group Incorporated
and the Initial Executing Shareholders (as defined therein)
by any Initial Executing Stockholder or (B) pursuant to
Section 2.1 of the Registration and Tag Along Rights
Agreement, dated as of March 28, 1994, among the Company,
Xxxxxxx Group Incorporated and the Purchasers (as defined
therein) by any Initial Holder (as defined therein) or any
Permitted Transferee thereof (as defined therein) or (C)
pursuant to Section 6(c)(viii) of the Certificate of
Designation of Preferences and Rights of the 6.375%
Cumulative Redeemable Convertible Preferred Stock, Series A,
of the Company an Initial Holder (as defined therein).
(b) By News Corp.. News Corp. hereby agrees
to indemnify and hold harmless the Seller from and against
any and all Damages actually suffered as a result of a breach
of any representation or warranty made by News Corp. in
Section 4.1 through 4.5 or 4.9.
(c) Tax Indemnification.
(i) The Seller shall be liable for,
shall pay to the appropriate Tax authorities, and
shall indemnify and hold the Purchaser harmless
against, all Taxes that are due and payable with
respect to Holdings and any other company, except
the Company and its Subsidiaries, with which
Holdings files a consolidated Federal tax return
and that relate to (A) the taxable periods ending
before or on the Closing Date, (B) the Pre-Closing
Period (excluding taxable income or loss, and all
other items, of the Company after the closing of
the Merger), and (C) any liabilities arising under
Treasury Regulation section 1.1502-6 and similar
provisions of foreign, state or local law. The
Seller shall be liable for, and shall indemnify and
hold the Purchaser and the Company and its
Subsidiaries harmless against, any liabilities
arising under Treasury Regulations section 1.1502-6
or under similar provisions of foreign, state or
local law to which the Company or its Subsidiaries
may be subject as a result of any Subsidiaries of
the Company having joined with the Seller (or its
affiliates) in the filing of consolidated,
combined, or unitary Tax Returns. The Seller shall
be entitled to all Tax refunds (including interest)
attributable to the taxable periods in respect of
which the Seller is so obligated to indemnify the
Purchaser under this Section 8.2(c)(i).
(ii) The Purchaser and Holdings
shall be liable for, shall pay to the appropriate
Tax authorities, and shall indemnify and hold the
Seller harmless against all Taxes of Holdings that
relate to (A) the taxable periods that begin after
the Closing Date and (B) the Post-Closing Period
(including taxable income or loss, and all other
items, of the Company after the closing of the
Merger). The Purchaser and Holdings shall be
entitled to any Tax refund (including interest)
attributable to the taxable periods in respect of
which the Purchaser and Holdings are so obligated
to indemnify the Seller under this Section
8.2(c)(ii).
(d) Conduct of Indemnification Proceedings.
If any Person shall be entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall give
prompt notice to the party from which such indemnity is
sought (the "indemnifying party") of any claim or of the
commencement of any proceeding with respect to which such
indemnified party seeks indemnification or contribution
pursuant hereto; provided, however, that the delay or failure
to so notify the indemnifying party shall not relieve the
indemnifying party from any obligation or liability except to
the extent that the indemnifying party has been materially
prejudiced by such delay or failure. Except as otherwise
provided in this Agreement, the indemnifying party shall have
the right, exercisable by giving written notice to an
indemnified party promptly after the receipt of written
notice from such indemnified party of such claim or
proceeding, to assume, at the indemnifying party's expense,
the defense of any such claim or proceeding, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that an indemnified party shall have the right to
employ separate counsel in any such claim or proceeding and
to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless: (i) the indemnifying party agrees
to pay such fees and expenses, (ii) the indemnifying party
fails promptly to assume the defense of such claim or
proceeding or fails to employ counsel reasonably satisfactory
to such indemnified party or (iii) the named parties to any
proceeding (including impleaded parties) include both such
indemnified party and the indemnifying party, and such
indemnified party shall have been advised in writing (a copy
of which shall be provided to the indemnifying party) by
counsel that there may be one or more legal defenses
available to it which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party);
in which case the indemnified party shall have the right to
employ counsel and to assume the defense of such claim or
proceeding to the extent such claim is effected by such
defense; provided, however, that the indemnifying party shall
not, in connection with any one such claim or proceeding or
separate but substantially similar or related claims or
proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one firm of
attorneys (together with appropriate local counsel) at any
time for all of the indemnified parties. Whether or not such
defense is assumed by the indemnifying party, such
indemnified party will not be subject to any liability for
any settlement made without its consent. The indemnifying
party shall not consent to entry of any judgment or enter
into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance
reasonably satisfactory to the indemnified party, from all
liability in respect of such claim or litigation for which
such indemnified party would be entitled to indemnification
hereunder.
(e) Treatment. Except as otherwise required
by law, all indemnification payments hereunder shall be
treated as an adjustment to the purchase price for the
Transferred Shares.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given if delivered by hand, mailed by registered or
certified mail (return receipt requested) or sent by prepaid
overnight courier (with proof of service) or confirmed
facsimile transmission to the parties as follows (or at such
other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which so
hand-delivered, mailed, delivered or sent by confirmed
facsimile transmission:
(a) if to the Seller, to:
c/o MacAndrews & Forbes Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
(b) if to News Corp., to:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy (which shall not constitute notice) to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
(c) If to the Purchaser, to:
Fox Television Stations, Inc
00000 Xxxx Xxxx Xxxxxxxxx
Building 88, Room 142
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx
with a copy (which shall not constitute notice) to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
Section 9.2 Expenses. All costs and expenses
incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such
expenses.
Section 9.3 Counterparts. This Agreement may be
executed in two or more counterparts, all of which shall be
considered the same agreement.
Section 9.4 Governing Law. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF. Each of the parties hereto
acknowledges that the negotiation of this Agreement occurred
in New York, New York and irrevocably agrees that any legal
suit, action or proceeding brought by another party hereto
arising out of or based upon this Agreement or the
transactions contemplated hereby shall be instituted in any
United States Federal or New York State court in the Borough
of Manhattan, The City of New York, New York (the "Courts"),
waives any objection which it may now or hereafter have to
the laying of venue of any such proceedings, submits to the
exclusive jurisdiction of such Courts in any such suit,
action or proceeding and agrees not to commence any such
suit, action or proceeding except in such Courts. Each of
the Purchaser and News Corp. hereby appoints News America
Publishing Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, as its
authorized agent (the "Authorized Agent") upon which process
may be served in any such action arising out of or based upon
this Agreement or the transactions contemplated hereby that
may be instituted in any Court by any party hereto and
expressly consents to the jurisdiction of any such Court, but
only in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with
respect thereto. Each of the Purchaser and News Corp.
represents and warrants that the Authorized Agent has agreed
to act as said agent for service of process, and each of the
Purchaser and News Corp. agrees to take any and all action,
including the filing of any and all documents and
instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. If the
Authorized Agent shall cease to act as the Purchaser's or
News Corp.'s agent for service of process, the Purchaser or
News Corp., as the case may be, shall appoint without delay
another such agent and notify the Seller of such appointment.
With respect to any such action in the Courts, service of
process upon the Authorized Agent and written notice of such
service to the Purchaser or News Corp. shall be deemed, in
every respect, effective service of process upon the
Purchaser or News Corp., as the case may be.
Section 9.5 Headings. The headings contained in
this Agreement are for reference purposes and shall not
affect in any way the meaning or interpretation of this
Agreement.
Section 9.6 Entire Agreement. This Agreement,
together with Confidentiality Agreement, the Seller
Disclosure Letter and the News Corp. Disclosure Letter,
constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof,
including, without limitation, the Memorandum (as defined in
the Merger Agreement).
Section 9.7 Severability Any term or provision of
this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is
enforceable.
IN WITNESS WHEREOF, this Agreement has been signed
on behalf of the Seller, News Corp. and the Purchaser, all as
of the date first written above.
NWCG (PARENT) HOLDINGS
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Director
FOX TELEVISION STATIONS, INC.
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
Senior Vice President
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of ,
1996, by and among The News Corporation Limited (XXX 000
000 000), x Xxxxx Xxxxxxxxx corporation (the "Company"),
Fox Television Station, Inc., a Delaware corporation in
which the Company has an indirect interest ("Fox"), and
the persons named on the signature pages hereto (each, an
"Investor," and collectively, the "Investors").
WHEREAS, the Investors own shares of capital
stock (the "Predecessor Shares"), or warrants to purchase
shares of capital stock (the "Predecessor Warrants"), of
New World Communications Group Incorporated, a Delaware
corporation (the "Predecessor Corporation");
WHEREAS, pursuant to the Stock Purchase
Agreement, dated as of September 24, 1996, among the
Company, Fox and certain of the Investors (the "Stock
Purchase Agreement"), Fox will purchase certain of the
Predecessor Shares and all of the outstanding shares of
capital stock of NWCG Holdings Corporation, a Delaware
corporation, in exchange for Company Preferred ADRs (as
defined below);
WHEREAS, in connection with the Agreement and
Plan of Merger, dated as of September 24, 1996 (the
"Merger Agreement"), by and among the Company, the
Predecessor Corporation, Fox and Fox Acquisition Co.,
Inc., a Delaware corporation and a wholly owned
subsidiary of Fox ("Merger Sub"), Merger Sub will be
merged with and into the Predecessor Corporation and the
Predecessor Warrants will become exercisable for Company
Preferred ADRs and certain of the Predecessor Shares will
be converted into the right to receive, or become
convertible into, Company Preferred ADRs; and
WHEREAS, in order to induce certain of the
Investors to execute and deliver to Fox and the Company
the Stock Purchase Agreement and all of the Investors to
execute and deliver to Fox certain voting agreements, the
Company has agreed to provide the registration rights and
Fox has agreed to pay the expenses and provide the
indemnification set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, and for other
good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as
follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms
shall have the following meanings:
Advice: See Section 4 hereof.
Affiliate means, with respect to any specified
person, any other person directly or indirectly
controlling or controlled by or under direct or indirect
common control with such specified person. For the
purposes of this definition, "control" when used with
respect to any specified person means the power to direct
the management and policies of such person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative
to the foregoing.
Business Day means any day that is not a
Saturday, a Sunday or a legal holiday on which banking
institutions in the State of New York are not required to
be open.
Capital Stock means, with respect to any
person, any and all shares, interests, participations or
other equivalents (however designated) of corporate stock
issued by such person, including each class of common
stock and preferred stock of such person.
Company: See the introductory clauses hereof.
Company Preferred ADRs means the American
Depositary Receipts of the Company, each of which
represents four fully paid and nonassessable Company
Preferred Shares, issued pursuant to the Merger
Agreement or the Stock Purchase Agreement or acquired
upon exercise of warrants of the Predecessor Corporation,
or any other shares of Capital Stock or other securities
into which such Company Preferred ADRs or Company
Preferred Shares shall be reclassified or changed,
including, without limitation, by reason of a merger,
consolidation, exchange, reorganization or
recapitalization. If the Company Preferred ADRs or
Company Preferred Shares have been so reclassified or
changed, or if the Company pays a dividend or makes a
distribution on the Company Preferred ADRs or Company
Preferred Shares in shares of Capital Stock or other
securities, or subdivides (or combines) its outstanding
Company Preferred ADRs or Company Preferred Shares into a
greater (or smaller) number of Company Preferred ADRs or
Company Preferred Shares, a Company Preferred ADR or
Company Preferred Share, as the case may be, shall be
deemed to be such number of shares of Capital Stock and
amount of other securities to which a holder of a Company
Preferred ADR or Company Preferred Share, as the case may
be, outstanding immediately prior to such change,
reclassification, exchange, dividend, distribution,
subdivision or combination would be entitled.
Company Preferred Shares means the Preferred
Limited Voting Ordinary Shares, par value A$.50 per
share, of the Company.
Delay Period: See Section 2(d) hereof.
Demand Notice: See Section 2(b) hereof.
Demand Registration: See Section 2(c) hereof.
Demand Registration Statement means a
Registration Statement intended to affect a Demand
Registration.
Effectiveness Period: See Section 2(d) hereof.
Exchange Act means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
SEC promulgated thereunder.
Hold-back Period: See Section 3 hereof.
Holder means a person who owns Registrable
Securities and is either (i) an Investor, (ii) a person
to whom an Investor has transferred Registrable
Securities in a transaction not involving a public
offering (e.g. pursuant to Rule "4(1-1/2)" or any similar
private transfer exemption) that has agreed to be bound
by the terms of this Agreement as if such person were an
Investor, (iii) upon the death of any Investor, the
executor of the estate of such Investor or such
Investor's heirs, devisees, legatees or assigns or (iv)
upon the disability of any Investor, any guardian or
conservator of such Investor.
Initial Shelf Registration: See Section 2(a)
hereof.
Interruption Period: See Section 4 hereof.
Investor(s): See the introductory clauses
hereof.
Merger Agreement: See the introductory clauses
hereof.
person means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
Predecessor Corporation: See the introductory
clauses hereof.
Predecessor Shares: See the introductory
clauses hereof.
Prospectus means the prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted
from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion
of the Registrable Securities covered by such
Registration Statement and all other amendments and
supplements to such prospectus, including post-effective
amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such
prospectus.
Registrable Securities means Company Preferred
ADRs or Company Preferred Shares originally issued
pursuant to the Merger Agreement or the Stock Purchase
Agreement or upon exercise of a Predecessor Warrant and
beneficially owned by an Investor or an Affiliate of an
Investor (or any pledgee of New Corp. Preferred ADRs
under a bona fide pledge arrangement with an Investor)
(whether offered for sale directly or in connection with
the issuance of debt, equity or other securities
(including, without limitation, any options, rights,
warrants or similar securities) of an Investor (or an
Affiliate of an Investor or a person established by or at
the request of an Investor) or another person that are or
may be exchangeable or exercisable for or convertible
into Company Preferred ADRs or Company Preferred Shares
(collectively, "Derivative Securities")) unless (i) such
securities have previously been disposed of by a Holder
pursuant to an effective Registration Statement under
Section 5 of the Securities Act, or (ii) such securities
owned by New World Communications Group (Parent) Holdings
Corporation, a Delaware corporation, or its assignee
("NWCGP") have become freely transferable without
restriction under the Securities Act.
Registration means registration under the
Securities Act of the offering of Registrable Securities
pursuant to the Initial Shelf Registration or the Demand
Registration.
Registration Period: See Section 2(b) hereof.
Registration Statement means any registration
statement of the Company under the Securities Act that
covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus
included therein, amendments and supplements to such
registration statement, including pre- and post-effective
amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in
such registration statement.
SEC means the Securities and Exchange
Commission.
Securities Act means the Securities Act of
1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.
Shelf Registration means the registration under
the Securities Act of the offering of Registrable
Securities on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act (or any similar rule
that may be adopted by the SEC).
Shelf Registration Statement means a
Registration Statement intended to effect a Shelf
Registration.
Stock Purchase Agreement: See the introductory
clauses hereof.
underwritten registration or underwritten
offering means a registration under the Securities Act in
which Registrable Securities, or securities of any person
exchangeable or exercisable for or convertible into
Registrable Securities, are sold to or through an
underwriter for reoffering or distribution pursuant to a
public offering.
SECTION 2. Initial Shelf Registration; Demand
Registration.
(a) At or before the Effective Time (as
defined in the Merger Agreement), the Company shall
prepare and file with the SEC a Shelf Registration
Statement on an appropriate form (the "Initial Shelf
Registration"). The Company shall include in the Initial
Shelf Registration all Registrable Securities with
respect to which a Holder has, not later than the second
day prior to the effectiveness of such Shelf Registration
Statement, given the Company written notice of such
Holder's intention to sell thereunder; provided, however,
that the Company shall not be obligated to include
Registerable Securities of Apollo Advisors L.P., or its
affiliates, unless Apollo Advisors L.P. and its
affiliates collectively include not less than 1,500,000
Company Preferred ADRs in the Initial Shelf Registration
Statement. The Company shall use its commercially
reasonable efforts to cause such Initial Shelf
Registration Statement to be declared effective by the
SEC at or before the Effective Time.
(b) NWCGP shall have the right, during the
period (the "Registration Period") commencing on the
second anniversary hereof and ending on the third
anniversary hereof, by written notice (the "Demand
Notice") given to the Company, to request the Company to
register under and in accordance with the provisions of
the Securities Act all or part of the Registrable
Securities designated by such Holders; provided, that
such Demand Notice may only be given in the event that,
in the opinion of counsel reasonably satisfactory to the
Company (which opinion shall be in writing and furnished
to the Company), the Registrable Shares must be sold
pursuant to an effective registration statement in order
for such shares to be sold to the public in the United
States without restriction under the Securities Act.
Upon receipt of any such Demand Notice, the Company will
promptly notify all other Holders of the receipt of such
Demand Notice and allow them the opportunity to include
Registrable Securities held by them in the proposed
registration by submitting their own Demand Notice.
NWCGP shall be entitled to one Demand Registration
pursuant to this Section 2(b) unless such Demand
Registration did not become effective or was not
maintained effective for a period (whether or not
continuous) of at least one year or such shorter period
which shall terminate when all the Registrable Securities
covered by such Demand Registration have been disposed of
pursuant thereto, in which case NWCGP will be entitled,
in such case, to one additional Demand Registration
pursuant hereto.
(c) As soon as practicable, but in any
event within 20 days after the date on which the Company
first receives a Demand Notice pursuant to Section 2(b)
hereof, the Company shall file with the SEC a
Registration Statement on the appropriate form for the
registration and sale of the total number of Registrable
Securities specified in such Demand Notices in accordance
with the intended method or methods of distribution
specified by NWCGP in such Demand Notice (a "Demand
Registration"). The Company shall use its commercially
reasonable efforts to cause such Registration Statement
to be declared effective by the SEC as soon as possible,
but in any event within 60 days of the date of the
Company's earliest receipt of a Demand Notice.
(d) The Company agrees to use
commercially reasonable efforts to keep any Registration
Statement filed pursuant to this Section 2 continuously
effective and usable for the sale of Registrable
Securities (i)(A) in the case of the Initial Shelf
Registration, until two years from the Effective Time,
and (B) in the case of a Demand Registration, until one
year from the date on which the SEC declares such
Registration Statement effective, or (ii) until all the
Registrable Securities covered by such Registration
Statement have been sold pursuant to such Registration
Statement, if earlier, in either case as such period may
be extended pursuant to this Section 2. Notwithstanding
the foregoing, the Company shall have the right to delay
the filing of any Demand Registration Statement otherwise
required to be prepared and filed by the Company pursuant
to this Section 2, or to suspend the use of any
Registration Statement, for a period not in excess of 30
days (a "Delay Period") if the Board of Directors of the
Company determines in its reasonable good faith judgment
that the registration and distribution of the Registrable
Securities covered or to be covered by such Registration
Statement would materially interfere with any pending
acquisition or corporate reorganization or other material
transaction involving the Company or any of its
subsidiaries or would require disclosure of any other
material corporate development that the Company is not
otherwise required to disclose, which disclosure would
materially adversely affect the Company. The Company
will promptly give the Holders written notice of such
determination and an approximation of the period of the
anticipated delay; provided, however, that the aggregate
number of days included in all Delay Periods during any
consecutive 12 months shall not exceed the aggregate of
(x) 90 days minus (y) the number of days occurring during
all Hold-Back Periods and Interruption Periods during
such 12 month period. Each Holder agrees to cease all
disposition efforts under such Registration Statement
with respect to Registrable Securities held by such
Holder immediately upon receipt of notice of the
beginning of any Delay Period. The Company shall provide
prompt written notice to the Holders of the end of each
Delay Period. Notwithstanding the foregoing, the Company
shall not be entitled to initiate a Delay Period unless
it shall concurrently prohibit (i) sales by other
security holders under registration statements covering
securities held by such other security holders and (ii)
sales of securities of the Company by directors and
executive officers during such period. The time period
for which the Company is required to maintain the
effectiveness of a Registration Statement referred to
above shall be extended by the aggregate number of days
of all Delay Periods, Hold-Back Periods and Interruption
Periods affecting such Registration, and such period and
any extension thereof is hereinafter referred to as the
"Effectiveness Period."
(e) The Company shall not include any
securities that are not Registrable Securities in any
Registration Statement filed pursuant to this Section 2
without the prior written consent of the Holders of a
majority in number of the Registrable Securities covered
by such Registration Statement. As of the date hereof,
there are no agreements granting any person (an "Other
Security Holder") the right to include any securities of
such Other Security Holder (or such Other Security
Holder's successors or assigns) in any registration
pursuant to Section 2. The Company shall not enter into
any agreement granting any Other Security Holder
registration rights that would permit any securities of
such Other Security Holder (or such Other Security
Holder's successors or assigns) to be included in a
Registration Statement filed pursuant to this Section 2.
(f) NWCGP may, at any time prior to the
effective date of the Registration Statement filed
pursuant to a Demand Notice, revoke such request by
providing a written notice to the Company to such effect,
provided, that NWCGP may not make any such revocation
request with respect to more than one Demand Notice.
SECTION 3. Hold-Back Agreements.
During any Effectiveness Period, NWCGP and each
of its Affiliates having Registrable Securities covered
by the Registration Statement to which such Effectiveness
Period relates shall, if requested by the managing
underwriter or underwriters in an underwritten offering
by the Company for the account of the Company, agree not
to effect any public sale or distribution of any
securities of the same type (including any underlying
securities) as the securities being offered by the
Company (except as part of such underwritten offering or
pursuant to Rule 144 or 145 under the Securities Act),
during a period of up to 90 days, beginning on the
effective date of such underwritten offering (such 90 day
period being referred to as a "Hold-Back Period"). In
addition, during any Effectiveness Period, the Company
shall, if requested by the managing underwriter or
underwriters in an underwritten offering for the account
of NWCGP or any of its Affiliates, agree not to effect
any public sale or distribution of any securities of the
same type (including any underlying securities) as the
securities being offered by such Holders (except as part
of such underwritten offering) during a period of up to
90 days, beginning on the effective date of such
underwritten offering.
SECTION 4. Registration Procedures.
In connection with the registration obligations
of the Company pursuant to and in accordance with Section
2 hereof, the Company will use its commercially
reasonable efforts to effect such registration to permit
the sale of such Registrable Securities in accordance
with the Holders' intended method or methods of
disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the SEC a
Registration Statement for the sale of the Registrable
Securities on any form for which the Company then
qualifies or which counsel for the Company shall deem
appropriate in accordance with such Holders' intended
method or methods of distribution thereof and, subject to
Section 2(d), use its commercially reasonable efforts to
cause such Registration Statement to become effective and
remain effective as provided herein;
(b) prepare and file with the SEC such
amendments (including post-effective amendments) to the
Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations
or instructions applicable to the Securities Act during
the applicable period in accordance with the intended
methods of disposition specified by the Holders owning
any Registrable Securities covered by such Registration
Statement, make generally available earnings statements
satisfying the provisions of Section 11(a) of the
Securities Act (provided that the Company shall be deemed
to have complied with this clause if it has complied with
Rule 158 under the Securities Act), and cause the
Prospectus as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; provided, that a
reasonable time before filing a Registration Statement or
Prospectus, or any amendments or supplements thereto
(including reports to be filed by it under the Exchange
Act that, upon filing, will be incorporated or deemed to
be incorporated by reference in any Registration
Statement or Prospectus), the Company will furnish to the
Holders owning Registrable Securities covered by such
Registration Statement, and their counsel, for review and
comment, copies of all such documents to be filed;
(c) notify the Holders owning any
Registrable Securities covered by such Registration
Statement promptly and (if requested) confirm such notice
in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any
post-effective amendment, when the same has become
effective, (ii) of any request by the SEC for amendments
or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) of
the receipt by the Company of any notification with
respect to the suspension of the qualification or
exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, and
(v) of the happening of any event that requires the
making of any changes in such Registration Statement,
Prospectus or documents incorporated or deemed to be
incorporated therein by reference so that they will not
contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein
or necessary to make the statements therein not
misleading;
(d) use its commercially reasonable
efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification or
exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction;
(e) furnish to the Holders disposing of
Registrable Securities covered by such Registration
Statement, counsel for such Holders and each managing
underwriter, if any, without charge, one executed copy of
the Registration Statement, as declared effective by the
SEC, and of each post-effective amendment thereto, in
each case, including financial statements and schedules
and all exhibits and reports incorporated or deemed to be
incorporated therein by reference; and deliver, without
charge, such number of conformed copies of the
Registration Statement and each amendment thereto, and of
the preliminary prospectus, any amended preliminary
prospectus, each final Prospectus and any amendment or
supplement thereto, as such Holder may reasonably request
in order to facilitate the disposition of the Registrable
Securities covered by the Registration Statement in
conformity with the requirements of the Securities Act;
(f) prior to any public offering of
Registrable Securities, use its commercially reasonable
efforts to register or qualify such Registrable
Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Holders
disposing of Registrable Securities covered by the
Registration Statement shall reasonably request in
writing; provided, however, that the Company shall in no
event be required to qualify generally to do business as
a foreign corporation in any jurisdiction where it is not
at the time so qualified or to take any action that would
subject it to general service of process or taxation in
any jurisdiction where it is not then subject;
(g) except during any Delay Period, upon
the occurrence of any event contemplated by Section
4(c)(v) above, promptly file a supplement or post-
effective amendment to the Registration Statement or
related Prospectus or any document incorporated or deemed
to be incorporated therein by reference or any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state any
material fact required to be stated therein or necessary
to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(h) use its commercially reasonable
efforts to cause all Registrable Securities covered by
the Registration Statement to be listed on each
securities exchange or automated interdealer quotation
system, if any, on which similar securities issued by the
Company are then listed or quoted;
(i) on or before the effective date of
the Registration Statement, provide the transfer agent of
the Company for the Registrable Securities with printed
certificates for the Registrable Securities in a form
eligible for deposit with The Depositary Trust Company;
(j) if such offering is an underwritten
offering, make available for inspection by any Holder
disposing of Registrable Securities included in such
Registration Statement, any underwriter of such offering,
and any attorney, accountant or other agent retained by
any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records and other
information, pertinent corporate documents and properties
of any of the Company and its subsidiaries (collectively,
the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence
responsibility; provided, however, that the Records that
the Company determines, in good faith, to be confidential
shall not be disclosed to any Inspector unless (i) such
Inspector signs a confidentiality agreement reasonably
satisfactory to the Company (which shall permit the
disclosure of such Records in such Registration Statement
or the related Prospectus if necessary to avoid or
correct a material misstatement in or material omission
from such Registration Statement or Prospectus), (ii)
after consultation with counsel for the applicable
Inspectors, the Holders and the Company, the disclosure
of such Records is necessary to avoid or correct a
material misstatement or material omission in such
Registration Statement or (iii) the release of such
Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, provided that
each Holder shall, promptly after learning that
disclosure of such Records is sought in a court having
jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of such Records;
and
(k) if such offering is an underwritten
offering, enter into such agreements (including an
underwriting agreement in form, scope and substance as is
customary in underwritten offerings) and take all such
other appropriate and reasonable actions requested by the
Holders owning a majority of the Registrable Securities
being sold in connection therewith (including those
reasonably requested by the managing underwriters) in
order to expedite or facilitate the disposition of such
Registrable Securities, and in such connection, (i) use
its commercially reasonable efforts to obtain opinions of
counsel to the Company and updates thereof (which counsel
and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters and
counsel to the Holders disposing of Registrable
Securities), addressed to each Holder selling Registrable
Securities covered by such Registration Statement and
each of the underwriters as to the matters customarily
covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by
such counsel and underwriters, (ii) use its commercially
reasonable efforts to obtain "cold comfort" letters and
updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other
independent certified public accountants of any
subsidiary of the Company or of any business acquired by
the Company for which financial statements and financial
data are, or are required to be, included in the
Registration Statement), addressed to each Holder selling
Registrable Securities covered by the Registration
Statement (unless such accountants shall be prohibited
from so addressing such letters by applicable standards
of the accounting profession) and each of the
underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten
offerings, and (iii) if requested and if an underwriting
agreement is entered into, provide indemnification
provisions and procedures substantially to the effect set
forth in Section 7 hereof with respect to all parties to
be indemnified pursuant to said Section. The above shall
be done at each closing under such underwriting or
similar agreement, or as and to the extent required
thereunder.
With respect to any Registration under Section
2 hereof, the Company may require each Holder disposing
of Registrable Securities covered by such Registration to
furnish such information regarding the Holder and such
Holder's intended disposition of Registrable Securities
as the Company may from time to time reasonably request
in writing. In connection with any offering of
Derivative Securities, the Company shall use commercially
reasonable efforts to cooperate with a Holder in
connection with such offering, provided, that the Company
shall not be required to assume any liabilities of a
nature that it would not otherwise be liable for in
connection with a direct sale by a Holder of Registrable
Securities.
Upon receipt of any notice from the Company of
the happening of any event of the kind described in
Section 4(c)(ii), 4(c)(iii), 4(c)(iv) or 4(c)(v) hereof,
each Holder shall (i) forthwith discontinue disposition
of any Registrable Securities pursuant to such
Registration Statement or Prospectus until receipt of the
copies of the supplemented or amended Prospectus
contemplated by Section 4(g) hereof, or until such Holder
is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and
has received copies of any amended or supplemented
Prospectus or any additional or supplemental filings
which are incorporated, or deemed to be incorporated, by
reference in such Prospectus (such period during which
disposition is discontinued being an "Interruption
Period") and (ii) if requested by the Company, deliver
to the Company (at the expense of the Company) all copies
then in its possession, other than permanent file copies
then in its possession, of the Prospectus covering such
Registrable Securities at the time of receipt of such
request.
SECTION 5. Registration Expenses.
Whether or not any Registration Statement is
filed or becomes effective, Fox shall pay all costs, fees
and expenses incident to the Company's performance of or
compliance with this Agreement including, without
limitation, (i) all registration and filing fees,
including NASD filing fees, (ii) fees and expenses of
compliance with securities or Blue Sky laws, including
reasonable fees and disbursements of counsel in
connection therewith, (iii) printing expenses (including,
without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses
(including preliminary prospectuses) if the printing of
prospectuses is requested by the Holders or the managing
underwriter, if any), (iv) messenger, telephone and
delivery expenses, (v) fees and disbursements of counsel
for the Company, (vi) fees and disbursements of all
independent certified public accountants of the Company
(including, without limitation, expenses of any "cold
comfort" letters required in connection with this
Agreement) and all other persons retained by the Company
in connection with the Registration Statement,
(vii) reasonable fees and disbursements of one counsel,
other than the Company's counsel, selected to represent
all such Holders by Holders owning a majority in number
of the Registrable Securities being registered, (viii)
fees and expenses customarily reimbursed or paid by
issuers or selling securityholders on behalf of
underwriters in underwritten offerings and (ix) all other
reasonable costs, fees and expenses incident to the
Company's performance or compliance with this Agreement.
Notwithstanding the foregoing, the fees and expenses of
any persons (other than fees and disbursements of the
counsel selected by Holders owning a majority in number
of the Registrable Securities being registered) retained
by a Holder, and any discounts, commissions or brokers'
fees or fees of similar securities industry professionals
and any transfer taxes relating to the disposition of the
Registrable Securities by a Holder, will be payable by
such Holder, and Fox will have no obligation to pay any
such amounts.
SECTION 6. Underwriting Requirements.
(a) Subject to Section 6(b) hereof, any
Holder shall have the right, by written notice, to
specify that it intends to dispose of Registrable
Securities covered by a Registration Statement pursuant
to an underwritten offering.
(b) In the case of any underwritten
offering(s) pursuant to the Initial Shelf Registration
Statement or the Demand Registration, the Holders selling
securities in such underwritten offering shall select the
institution or institutions that shall manage or lead the
offering or placement, subject to the reasonable
satisfaction of the Company. Any selection or other
decision by Holders pursuant to this paragraph (b) shall
be made by the Holders of a majority in number of the
Registrable Securities to be sold pursuant to the
applicable underwritten offering. No Holder shall be
entitled to participate in an underwritten offering
unless and until such Holder has entered into an
underwriting or other agreement with such institution or
institutions for such offering in such form as the
Company and such institution or institutions shall
determine.
SECTION 7. Indemnification.
(a) Indemnification by Fox. Fox shall,
without limitation as to time, indemnify and hold
harmless, to the full extent permitted by law, each
Holder whose Registrable Securities are covered by a
Registration Statement or Prospectus, the officers,
directors and agents and employees of each of them, each
Person who controls each such Holder (within the meaning
of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, agents and
employees of each such controlling person, to the fullest
extent lawful, from and against any and all losses,
claims, damages, liabilities, judgment, reasonable costs
(including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees) and
reasonable expenses (collectively, "Losses"), as
incurred, arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in
such Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission
or alleged omission of a material fact required to be
stated therein or necessary to make the statements
therein not misleading, except insofar as the same are
based upon information furnished in writing to the
Company by or on behalf of such Holder expressly for use
therein; provided, however, that Fox shall not be liable
to any Holder to the extent that any such Losses arise
out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in
any preliminary prospectus if (i) having previously been
furnished by or on behalf of the Company with copies of
the Prospectus, such Holder failed to send or deliver a
copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable
Securities by such Holder to the person asserting the
claim from which such Losses arise and (ii) the
Prospectus would have completely corrected such untrue
statement or alleged untrue statement or such omission or
alleged omission.
(b) Indemnification by Holder of
Registrable Securities. In connection with any
Registration Statement in which a Holder is
participating, and as a condition to such participation,
such Holder shall (i) furnish to the Company in writing
such information as the Company reasonably requests for
use in connection with any Registration Statement or
Prospectus and (ii) be deemed to have agreed to
indemnify, to the fullest extent permitted by law, the
Company, its directors, officers, agents and employees,
each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, from and against
all Losses arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus or any amendment
or supplement thereto, or any preliminary prospectus, or
arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein
or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that
such untrue or alleged untrue statement or omission or
alleged omission is based upon and in conformity with any
information so furnished in writing by or on behalf of
such Holder to the Company expressly for use in such
Registration Statement or Prospectus.
(c) Conduct of Indemnification
Proceedings. If any Person shall be entitled to
indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party
from which such indemnity is sought (the "indemnifying
party") of any claim or of the commencement of any
proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto;
provided, however, that the delay or failure to so notify
the indemnifying party shall not relieve the indemnifying
party from any obligation or liability except to the
extent that the indemnifying party has been materially
prejudiced by such delay or failure. The indemnifying
party shall have the right, exercisable by giving written
notice to an indemnified party promptly after the receipt
of written notice from such indemnified party of such
claim or proceeding, to assume, at the indemnifying
party's expense, the defense of any such claim or
proceeding, with counsel reasonably satisfactory to such
indemnified party; provided, however, that an indemnified
party shall have the right to employ separate counsel in
any such claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless: (l) the indemnifying party agrees to pay such
fees and expenses, (2) the indemnifying party fails
promptly to assume the defense of such claim or
proceeding or fails to employ counsel reasonably
satisfactory to such indemnified party or (3) the named
parties to any proceeding (including impleaded parties)
include both such indemnified party and the indemnifying
party, and such indemnified party shall have been advised
in writing (a copy of which shall be furnished to the
indemnifying party) by counsel that there may be one or
more legal defenses available to it which are different
from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not
have the right to assume the defense of such action on
behalf of such indemnified party); in which case the
indemnified party shall have the right to employ counsel
and to assume the defense of such claim or proceeding to
the extent such claim is effected by such defense;
provided, however, that the indemnifying party shall not,
in connection with any one such claim or proceeding or
separate but substantially similar or related claims or
proceedings in the same jurisdiction, arising out of the
same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one firm of
attorneys (together with appropriate local counsel) at
any time for all of the indemnified parties. Whether or
not such defense is assumed by the indemnifying party,
such indemnified party will not be subject to any
liability for any settlement made without its consent.
The indemnifying party shall not consent to entry of any
judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a
release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of
such claim or litigation for which such indemnified party
would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification
provided for in this Section 7 is unavailable to an
indemnified party in respect of any Losses (other than in
accordance with its terms), then each applicable
indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such
Losses, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party, on the one
hand, and such indemnified party, on the other hand, in
connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by
reference to, among other things, whether any action in
question, including any untrue or alleged untrue
statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or
relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity
to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any
reasonable legal or other fees or expenses incurred by
such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be
just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by
any other method of allocation that does not take account
of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the
provision of this Section 7(d), an indemnifying party
that is a Holder shall not be required to contribute any
amount which is in excess of the amount by which the
total proceeds received by such Holder from the sale of
Registrable Securities (net of all underwriting discounts
and commissions) exceeds the amount of any damages that
such indemnifying party has otherwise been required to
pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
SECTION 8. Miscellaneous.
8.1 Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given if delivered by hand, mailed by registered
or certified mail (return receipt requested) or sent by
prepaid overnight courier (with proof of service) or
confirmed facsimile transmission to the parties as
follows (or at such other addresses for a party as shall
be specified by like notice) and shall be deemed given on
the date on which so hand-delivered, mailed, delivered or
sent by confirmed facsimile transmission:
To the Company:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy (which shall not constitute notice)
to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
To Fox:
Fox Television Stations, Inc.
00000 Xxxx Xxxx Xxxxxxxxx
Building 88, Room 142
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice)
to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
To a Holder, at the address set forth on
Schedule 8.1 hereto.
8.2 Separability. If any provision of this
Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining
provisions hereof which shall remain in full force and
effect.
8.3 Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties
hereto and their respective heirs, devisees, legatees,
legal representatives, successors and assigns. Except as
set forth herein, neither the Company nor any Holder
shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the
Company and the other Holders, with respect to an
assignment by any Holder, or the Holders, with respect to
an assignment by the Company; provided, that no consent
of the Company or the other Holders shall be required for
the assignment by any Holder of this Agreement or any of
the rights and obligations of such Holder hereunder to
any person described in clause (ii) of the definition of
"Holder" to whom Registrable Securities are transferred
by such Holder. If the Company is a party to a merger,
consolidation or other transaction in which all or part
of the Registrable Securities are converted or changed
into securities of any other person, the Company shall
make appropriate provision for such other person to
become a party to this Agreement and to provide the
registration and other rights with respect to the
securities of such other person.
8.4 Entire Agreement. This Agreement
represents the entire agreement of the parties and shall
supersede any and all previous contracts, arrangements or
understandings between the parties hereto with respect to
the subject matter hereof, including, without limitation,
the Memorandum (as defined in the Merger Agreement).
8.5 Amendments and Waivers. Except as
otherwise provided herein, the provisions of this
Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained
the written consent of Holders of at least a majority in
number of the Registrable Securities then outstanding.
8.6 Publicity. The Holders and the Company
agree that no public release or announcement concerning
the transactions contemplated hereby shall be issued by
either party without the prior consent of the other
party, which consent shall not be unreasonably withheld,
except to the extent that the Holders or the Company is
advised by counsel that such release or announcement is
necessary or advisable under applicable law or the rules
or regulations of any securities exchange, in which case
the party required to make the release or announcement
shall to the extent practicable provide the other party
with an opportunity to review and comment on such release
or announcement in advance of its issuance.
8.7 Expenses. Whether or not the transactions
contemplated hereby are consummated, except as otherwise
provided herein, all costs and expenses incurred in
connection with the execution of this Agreement shall be
paid by the party incurring such costs or expenses.
8.8 Interpretation. The headings contained in
this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement.
8.9 Counterparts. This Agreement may be
executed in two or more counterparts, all of which shall
be considered one and the same agreement, and shall
become effective when two or more such counterparts have
been signed by each of the parties and delivered to the
other party.
8.10 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED, INTERPRETED, AND GOVERNED IN ACCORDANCE WITH
THE LAWS OF NEW YORK, WITHOUT REFERENCE TO RULES RELATING
TO CONFLICTS OF LAW. Each of the parties hereto
acknowledges that the negotiation of this Agreement
occurred in New York, New York and irrevocably agrees
that any legal suit, action or proceeding brought by
another party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby shall
be instituted in any United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York (the "Courts"), waives any objection which
it may now or hereafter have to the laying of venue of
any such proceedings, submits to the exclusive
jurisdiction of such Courts in any such suit, action or
proceeding and agrees not to commence any such suit,
action or proceeding except in such Courts. The Company
hereby appoints News America Publishing Incorporated,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, as its authorized agent
(the "Authorized Agent") upon which process may be served
in any such action arising out of or based upon this
Agreement or the transactions contemplated hereby that
may be instituted in any Court by any party hereto and
expressly consents to the jurisdiction of any such Court,
but only in respect of any such action, and waives any
other requirements of or objections to personal
jurisdiction with respect thereto. The Company
represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and
the Company agrees to take any and all action, including
the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full
force and effect as aforesaid. If the Authorized Agent
shall cease to act as the Company's agent for service of
process, the Company shall appoint without delay another
such agent and notify the Company of such appointment.
With respect to any such action in the Courts, service of
process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every
respect, effective service of process upon the Company.
8.11 Calculation of Time Periods. Except as
otherwise indicated, all periods of time referred to
herein shall include all Saturdays, Sundays and holidays;
provided, that if the date to perform the act or give any
notice with respect to this Agreement shall fall on a day
other than a Business Day, such act or notice may be
timely performed or given if performed or given on the
next succeeding Business Day.
8.12 Immunity Waiver. News Corp. hereby
waives any immunity to which it may become entitled on
the basis of sovereignty or otherwise in respect of its
obligations under this Agreement and agrees not to
interpose any such immunity as a defense to any suit or
action brought or maintained in respect of News Corp.'s
obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first
written above.
THE NEWS CORPORATION LIMITED
By:____________________________
Name:
Title:
FOX TELEVISION STATIONS, INC.
By:____________________________
Name:
Title:
[INVESTOR]
By:____________________________
Name:
Title:
SCHEDULE 8.11
INVESTOR
NOTICE ADDRESSES
EXHIBIT B-1
FORM OF LEGAL OPINION OF
SQUADRON, ELLENOFF, PLESENT & XXXXXXXXX, LLP,*
COUNSEL FOR NEWS CORP.
1. Fox and each of the other News Corp.
Subsidiaries listed on Schedule A hereto is a corporation
validly existing and in good standing under the laws of
its respective jurisdiction of incorporation.
2. Fox has the corporate power and corporate
authority to enter into the Stock Purchase Agreement and
to consummate the transactions contemplated thereby. The
execution and delivery of the Stock Purchase Agreement by
Fox and the consummation of the transactions contemplated
thereby have been duly authorized by all requisite
corporate action on the part of Fox. The Stock Purchase
Agreement has been executed and delivered by Fox and
(assuming it has been duly authorized, executed and
delivered by the Seller) is a valid and binding
obligation of Fox, enforceable against Fox in accordance
with its terms, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity) and (b) rights to
indemnification thereunder that may be limited by Federal
or state securities laws or the policies underlying such
laws.
3. The execution, delivery and performance of
the Stock Purchase Agreement by Fox will not result in a
breach or violation of any provision of the certificate
of incorporation or by-laws of Fox.
4. Each of the Registration Rights Agreement
and the Deposit Agreement is a valid and binding
obligation of News Corp., enforceable against News Corp.
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity). Upon the issuance by
the Depositary of the News Corp. Preferred ADRs to be
issued pursuant to the Stock Purchase Agreement against
the deposit of News Corp. Preferred Stock in accordance
with the provisions of the Deposit Agreement, such News
Corp. Preferred ADRs will be legally and validly issued
-----------------------
* To the extent any matter in the Opinion is governed by
the laws of any jurisdiction other than New York or
Delaware, counsel may rely upon the reasonably
acceptable opinion of counsel in such other
jurisdiction.
and will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement.
5. The News Corp. Guaranty is a valid and
binding obligation of News Corp., enforceable against
News Corp. in accordance with its terms, except (a) to
the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles
of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), (b)
rights to indemnification thereunder may be limited by
United States Federal or state securities laws or the
policies underlying such laws and (c) Section 205 of the
Corporations Law prohibits News Corp. from providing a
guaranty of (A) Fox's indemnification obligations under
the Merger Agreement, the Stock Purchase Agreement and
the Registration Rights Agreement and (B) Fox's
obligations to pay amounts under the Registration Rights
Agreement.
6. All consents, authorizations, approvals
and filings with any court, department, commission,
authority, board, bureau, agency or other instrumentality
of the United States, the State of New York or the State
of Delaware (the "Governmental Authorities") required to
be obtained or made by News Corp. and all consents and
filings required to be obtained or made by News Corp.
under the rules of the NYSE, in each case for the
consummation of the transactions contemplated by the
Stock Purchase Agreement and the issuance and sale of the
News Corp. Preferred ADRs to be issued pursuant to the
Stock Purchase Agreement, have been obtained or made, and
no such consent, authorization, approval or filing with a
Governmental Authority is required to be obtained or made
to effect dividend payments on any shares of News Corp.
Preferred Stock or for the Depositary to effect dividend
payments in U.S. dollars on any News Corp. Preferred
ADRs. We express no opinion with respect to any
consents, authorizations, approvals and filings required
to be made with the FCC.
7. The Registration Statement has become
effective under the Securities Act, and we have been
advised by the SEC that no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the best of our knowledge, no proceeding
for that purpose has been instituted or threatened by the
SEC.
8. The statements contained the Registration
Statement under the caption ["Description of American
Depositary Receipts"] and ["Certain United States Federal
Income Tax Matters," as it relates to the News Corp.
Preferred ADRs to be issued in the Merger,] are accurate
and nothing has been omitted from such statements that
would make such statements misleading in any material
respect.
9. Each of the Registration Statement, as of
the effective date thereof, and the Proxy
Statement/Prospectus, as of the date thereof, and as of
the date hereof (in each case, other than the financial
statements, schedules and other financial data included
therein, as to which we express no opinion) complies as
to form, in all material respects, with the requirements
of the Securities Act and the rules and regulations
thereunder.
In addition, nothing has come to our attention
that would lead us to believe that the Registration
Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, or that
the Proxy Statement/Prospectus, as of its date and the
date hereof (in each case, other than the financial
statements, schedules and other financial data included
therein, as to which we express no opinion), insofar as
it relates to News Corp., Fox or Merger Sub, contained or
contains an untrue statement of a material fact or
omitted or omits to state any material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading, except that we express no
opinion or belief with respect to the information
contained or incorporated by reference in the
Registration Statement or the Proxy Statement/Prospectus
to the extent such information was furnished by or
relates to the Company.
Schedule A
[to be reasonably agreed upon]
EXHIBIT B-2
FORM OF LEGAL OPINION OF
XXXXX XXXXX & XXXXXXX,**
AUSTRALIAN COUNSEL FOR NEWS CORP.
1. News Corp. and each of the News Corp.
Subsidiaries listed on Schedule A hereto is a corporation
duly incorporated under the laws of the jurisdiction set
forth opposite its respective name in Schedule A hereto
and is capable of being sued in its corporate name.
There is no application pending, or to our knowledge,
threatened for News Corp. or any of such News Corp.
Subsidiaries to be wound up, dissolved or deregistered
nor is there any application pending or, to our
knowledge, threatened for the appointment of a receiver,
receiver and manager or administrator in respect of News
Corp., the whole or any part of the assets of News Corp,
such News Corp. Subsidiaries or the whole or any part of
the assets of such News Corp. Subsidiaries.
2. All of the shares of News Corp. Preferred
Stock underlying the News Corp. Preferred ADRs to be
issued pursuant to the Stock Purchase Agreement have been
duly and validly issued to the Depositary, are fully paid
and non-assessable, conform with the description thereof
in the Registration Statement and have been admitted for
quotation on the Australian Stock Exchange. The
certificates for the shares of News Corp. Preferred Stock
underlying the News Corp. Preferred ADRs to be issued
pursuant to the Stock Purchase Agreement have been duly
and validly issued and delivered to the Depositary, and
the name of the Depositary has been entered in the
Register of Shareholders of News Corp. in respect of such
shares of News Corp. Preferred Stock.
3. The issue of the shares of News Corp.
Preferred Stock underlying the News Corp. Preferred ADRs
to be issued pursuant to the Stock Purchase Agreement (a)
complied with the Corporations Law, the Memorandum and
Articles of Association of News Corp. and the Listing
Rules of the Australian Stock Exchange and (b) did not
violate any preemptive or similar rights of any holder of
any equity securities of News Corp. under the
Corporations Law, the listing rules of the ASX or the
rights attaching to such securities.
4. News Corp. has the corporate power and
corporate authority to enter into the Stock Purchase
Agreement, the News Corp. Guaranty and the Registration
Rights Agreement and to consummate the transactions
contemplated thereby. The execution and delivery of the
Stock Purchase Agreement, the News Corp. Guaranty and the
Registration Rights Agreement by News Corp. and the
consummation of the transactions contemplated thereby
have been duly authorized by all requisite corporate
------------------
* To the extent any matter in the Opinion is governed by
the laws of any jurisdiction other than Australia,
counsel may rely upon the reasonably acceptable
opinion of counsel in such other jurisdiction.
action on the part of News Corp. Each of the Stock
Purchase Agreement and the Registration Rights Agreement
has been executed and delivered by News Corp. and
(assuming it has been duly authorized, executed and
delivered by the Seller and the Investors, as applicable)
is a valid and binding obligation of News Corp.,
enforceable against News Corp. in accordance with its
terms, except (a) to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws not or
hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity) and (b) rights to
indemnification thereunder may be limited by United
States Federal or state securities laws or the policies
underlying such laws. The News Corp. Guaranty is a valid
and binding obligation of News Corp., enforceable against
News Corp. in accordance with its terms, except (a) to
the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or
other similar laws not or hereafter in effect relating to
creditors' rights generally and (ii) general principles
of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), (b)
rights to indemnification thereunder may be limited by
United States Federal or state securities laws or the
policies underlying such laws and (c) Section 205 of the
Corporations Law of South Australia prohibits News Corp.
from providing a guaranty of (A) Fox's indemnification
obligations under the Merger Agreement, the Stock
Purchase Agreement and the Registration Rights Agreement
and (B) Fox's obligations to pay amounts under the
Registration Rights Agreement.
5. The execution, delivery and performance of
the Stock Purchase Agreement, the News Corp. Guaranty and
the Registration Rights Agreement by News Corp. will not
result in a breach or violation of any provision of the
Memorandum and Articles of Association of News Corp.
6. No consents, authorizations, approvals or
filings are required to be obtained or made by News Corp.
under the laws of Australia nor are any consents or
filings required to be obtained or made by News Corp.
under the rules of the ASX, in each case, for the
consummation of the transactions contemplated by the
Stock Purchase Agreement, and the issue and sale of the
shares of News Corp. Preferred Stock underlying the News
Corp. Preferred ADRs to be issued pursuant to the Stock
Purchase Agreement and the issuance and sale of the News
Corp. Preferred ADRs to be issued pursuant to the Stock
Purchase Agreement, and no such consent, authorization,
approval or filing is required to be obtained or made to
effect dividend payments on any shares of News Corp.
Preferred Stock or for the Depositary to effect dividend
payments in U.S. dollars on any News Corp. Preferred
ADRs.
7. The choice of New York law to govern the
Stock Purchase Agreement, the News Corp. Guaranty and the
Registration Rights Agreement is, under the laws of
Australia, a valid choice of law, and subject to certain
exceptions and time limitations, any final judgment for a
sum of money against News Corp. in relation to the Stock
Purchase Agreement or the Registration Rights Agreement
rendered by a competent United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York, would be recognized and enforced by the
courts of Australia.
8. Under the laws of the Commonwealth of
Australia, the submission by News Corp. to the
jurisdiction of any United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York and the designation of the law of the
State of New York to apply to the Stock Purchase
Agreement, the News Corp. Guaranty and the Registration
Rights Agreement is binding upon News Corp. and, if
properly brought to the attention of the court in
accordance with the laws of the Commonwealth of
Australia, would be enforceable in a judicial proceeding
in the Commonwealth of Australia.
9. News Corp. is not entitled to any immunity
on the basis of sovereignty or otherwise in respect of
its obligations under the Stock Purchase Agreement, the
News Corp. Guaranty or the Registration Rights Agreement
and could not impose any such immunities as a defense to
any suit or action brought or maintained in respect of
its obligations under the Stock Purchase Agreement, the
News Corp. Guaranty or the Registration Rights Agreement;
and if News Corp. were to become entitled to such
immunity, News Corp.'s waiver of immunity in Section 5.14
of the Stock Purchase Agreement, Section 7 of the News
Corp. Guaranty and Section 8.12 of the Registration
Rights Agreement is a valid and legally binding
obligation of News Corp.
10. News Corp. has the power to submit, and
has taken all necessary corporate action to submit, to
the jurisdiction of United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York, and to appoint News America Publishing
Incorporated as the authorized agent of News Corp. for
the purposes and to the extent described in Section 9.4
of the Stock Purchase Agreement, Section 8.2 of the News
Corp. Guaranty and Section 8.10 of the Registration
Rights Agreement.
11. No holder of Company Common Stock, Company
Preferred Stock, Company Stock Options or Company
Warrants (other than News Corp., Merger Sub, Fox or any
other News Corp. Subsidiary) will be liable for any stamp
duty or other issuance or transfer taxes in Australia or
to any taxing authority thereof or therein in connection
with (a) the authorization, issuance, sale and delivery
of the shares of News Corp. Preferred Stock underlying
the News Corp. Preferred ADRs to be issued pursuant to
the Stock Purchase Agreement, (b) the deposit with the
Depositary of the shares of News Corp. Preferred Stock
underlying the News Corp. Preferred ADRs to be issued
pursuant to the Stock Purchase Agreement, (c) the sale
and delivery by Fox of the News Corp. Preferred ADRs to
be issued pursuant to the Stock Purchase Agreement, or
(d) the consummation of any other transactions
contemplated by the Stock Purchase Agreement in
connection with the issuance and sale of the shares
underlying the News Corp. Preferred Stock to be issued
pursuant to the Stock Purchase Agreement and the News
Corp. Preferred ADRs to be issued pursuant to the Stock
Purchase Agreement.
12. The statements contained the Registration
Statement under the captions ["Description of Capital
Stock"], ["Australian Tax Matters"] and ["Exchange
Controls and Other Limitations Affecting Security
Holders,"] and the statement regarding the enforceability
of civil liabilities against Australian persons under
["Enforceability of Judgments,"] insofar as they relate
to matters of Australian law, are accurate and nothing
has been omitted from such statements that would make
such statements misleading in any material respect.
13. The Deposit Agreement is a valid and
legally binding obligation of News Corp., enforceable
against News Corp. in accordance with its terms, except
to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws not or hereafter in effect relating to
creditors' rights generally and (b) general principles of
equity (regardless of whether enforcement is considered
in a proceeding at law or in equity).
Schedule A
[to be reasonably agreed upon with regard to Australian
entities only]
EXHIBIT C
FORM OF LEGAL OPINION OF
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX
COUNSEL FOR THE SELLER
1. Each of the Seller and Holdings is validly
existing and in good standing under the laws of its
respective jurisdiction of incorporation.
2. The Seller has the corporate power and
corporate authority to enter into the Stock Purchase
Agreement and to consummate the transactions contemplated
thereby. The execution and delivery of the Stock
Purchase Agreement by the Seller and the consummation of
the transactions contemplated thereby have been duly
authorized by all requisite corporate action on the part
of the Seller. The Stock Purchase Agreement has been
executed and delivered by the Seller and (assuming it has
been duly authorized, executed and delivered by News
Corp. and Fox) is a valid and binding obligation of the
Seller, enforceable against the Seller in accordance with
its terms, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity) and (b) that rights to
indemnification thereunder may be limited by Federal or
state securities laws or the policies underlying such
laws.
3. The execution and delivery by the Seller
of the Stock Purchase Agreement and the performance by
the Seller of its obligations thereunder, in accordance
with its terms, do not (i) conflict with the Restated
Certificate of Incorporation or the By-laws of the
Seller, (ii) constitute a violation of or a default under
any Applicable Contracts (as hereinafter defined) or
(iii) cause the creation of any security interest or lien
upon any of the property of the Company pursuant to any
Applicable Contracts. We do not express any opinion,
however, as to whether the execution, delivery or
performance by the Seller of the Stock Purchase Agreement
will constitute a violation of or a default under any
covenant, restriction or provision with respect to
financial ratios or tests or any aspect of the financial
condition or results of operations of the Seller.
"Applicable Contracts" mean those agreements or
instruments set forth on a Schedule to a certificate
provided by the Seller and which have been identified to
us.
4. Neither the execution or delivery by the
Seller of the Stock Purchase Agreement nor the
consummation by the Seller of the transactions
contemplated thereby in accordance with the terms and
provisions thereof will violate any Applicable Law (as
hereinafter defined). "Applicable Laws" shall mean those
laws, rules and regulations of the State of New York, the
general corporate law of the State of Delaware and of the
United States of America which, in our experience, are
normally applicable to transactions of the type
contemplated by the Stock Purchase Agreement.
5. No Governmental Approval (as hereinafter
defined), which has not been obtained or taken and is not
in full force and effect, is required to authorize or is
required in connection with the execution, delivery or
performance of the Stock Purchase Agreement by the
Seller, except that we express no opinion with regard to
the securities or Blue Sky laws of the various states.
"Governmental Approval" means any consent, approval,
license, authorization or validation of, or filing,
recording or registration with, any Governmental
Authority pursuant to Applicable Laws.
